Exhibit 10.1
HELIX BIOMEDIX, INC.
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
This Common Stock and Warrant Purchase Agreement (the "Agreement") is made
as of February 15, 2005 by and between Helix BioMedix, Inc., a Delaware
corporation (the "Company") and the investors listed on Exhibit A attached
hereto (each a "Purchaser" and together the "Purchasers").
The parties hereby agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK AND WARRANTS.
1.1 SALE AND ISSUANCE OF COMMON STOCK AND WARRANTS.
(a) The Company will, prior to the Initial Closing (as defined
below), authorize the sale and issuance of up to 3,000,000 shares of the
Company's $0.001 par value common stock ("Shares"). The Shares will have the
rights set forth in the Certificate of Incorporation of the Company
("Certificate").
(b) In addition the Company will, prior to the Initial
Closing, authorize the sale and issuance of warrants to Purchasers who purchase
$750,000 or more of the Shares, to purchase up to ten percent (10%) of the
number of Shares purchased of $0.001 par value common stock in the form attached
hereto as Exhibit B ("Warrants") (Shares and Warrants are collectively referred
to herein as "Securities").
(c) Subject to the terms and conditions of this Agreement,
each Purchaser agrees to purchase at the closing and the Company agrees to sell
and issue to each Purchaser at the closing that number of Shares and a Warrant
to purchase the number of shares of common stock set forth opposite each such
Purchaser's name on Exhibit A. The aggregate purchase price of each Share and,
if applicable, the corresponding Warrant share is $1.50.
1.2 CLOSING; DELIVERY.
(a) The purchase and sale of the Securities shall take place
at the offices of the Company, ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, on or
before February 15, 2005 (which time and place are designated as the "Initial
Closing").
(b) If less than all of the Securities are sold and issued at
the Initial Closing, subject to the terms and conditions of this Agreement, the
Company may sell and issue at one or more subsequent closings (each, a
"Subsequent Closing"), up to the balance of the unissued Securities to such
persons or entities as may be approved by the Company in its sole discretion.
Any such sale and issuance in a Subsequent Closing shall be on the same terms
and conditions as those contained herein. In the event there is more than one
closing, the term "Closing" shall apply to the Initial Closing and each such
Subsequent Closing unless otherwise specified herein.
(c) At each Closing, the Company shall deliver to each
Purchaser certificates representing the Securities being purchased thereby
against payment of the purchase price therefor by wire transfer to a bank
account designated by the Company.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to each Purchaser that, except as set forth on a
Schedule of Exceptions delivered separately by the Company to each Purchaser,
which exceptions shall be deemed to be representations and warranties as if made
hereunder:
2.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and authority to
carry on its business. The Company is duly qualified to transact business and is
in
3
good standing in each jurisdiction in which the failure so to qualify would have
a material adverse effect on its business or properties.
2.2 CAPITALIZATION. The authorized capital of the Company consists,
or will consist, immediately prior to the Initial Closing, of:
(a) 25,000,000 shares of Preferred Stock, of which 220,000
shares have been designated Series A Junior Participating Preferred Stock, none
of which are issued and outstanding and all of which are reserved for issuance
pursuant to the Company's Rights Agreement dated August 21, 2003 ("Rights
Agreement"). The rights, privileges and preferences of the Preferred Stock are
as stated in the Certificate.
(b) 100,000,000 shares of Common Stock, of which 13,533,370
shares of have been issued and outstanding. All of the outstanding shares of
Common Stock have been duly authorized, are fully paid and nonassessable and
were issued in compliance with all applicable federal and state securities laws.
(c) The Company has reserved 5,400,000 shares of Common Stock
for issuance to officers, directors, employees and consultants of the Company
pursuant to its 2000 Stock Option Plan duly adopted by the Board of Directors
and approved by the Company stockholders (the "Stock Plan"). Of such reserved
shares of Common Stock, 2,463,666 are covered by option grant agreements and
2,891,334 remain available for issuance pursuant to the Stock Plan.
(d) The Company has reserved 7,940,369 shares of Common Stock
for issuance upon the exercise of to issued and outstanding warrants.
(e) Except for (i) conversion privileges of the Preferred
Stock, (ii) the outstanding options issuable pursuant to the Stock Plan, (iii)
the outstanding warrants referenced in item (d) above, and (iv) rights set forth
in the Rights Agreement, there are no outstanding options, warrants, rights
(including conversion or preemptive rights and rights of first refusal or
similar rights) or agreements, orally or in writing, for the purchase or
acquisition from the Company of any shares of its capital stock.
2.3 SUBSIDIARIES. The Company does not currently own or control,
directly or indirectly, any interest in any other corporation, association, or
other business entity. The Company is not a participant in any joint venture,
partnership or similar arrangement.
2.4 AUTHORIZATION. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations of
the Company hereunder and the authorization, issuance and delivery of the
Securities has been taken or will be taken prior to the Closing, and the
Agreement, when executed and delivered by the Company, shall constitute valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of
general application affecting enforcement of creditors' rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
2.5 VALID ISSUANCE OF SECURITIES. The Securities being issued to the
Purchasers hereunder, when issued, sold and delivered in accordance with the
terms hereof for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable and free of restrictions on transfer other
than restrictions on transfer under this Agreement, applicable state and federal
securities laws and liens or encumbrances created by or imposed by a Purchaser.
Based in part upon the representations of the Purchasers in this Agreement and
subject to the provisions of Section 2.6 below, the Securities will be issued in
compliance with all applicable federal and state securities laws. The Company
covenants that neither it nor any authorized agent acting on its behalf will
take any action hereafter that would cause the failure of such compliance.
2.6 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by
4
this Agreement, except for filings pursuant to applicable state securities laws
and Regulation D of the Securities Act of 1933, as amended (the "Securities
Act").
2.7 LITIGATION. There is no action, suit, proceeding or
investigation pending or, to the Company's knowledge, currently threatened
against the Company that questions the validity of the Agreement or the right of
the Company to enter into it, or to consummate the transactions contemplated
hereby, or that might result, either individually or in the aggregate, in any
material adverse change in the assets, condition or affairs of the Company,
financially or otherwise, or any change in the current equity ownership of the
Company, nor is the Company aware that there is any basis for the foregoing. The
Company is not a party or subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the
Company currently pending or which the Company intends to initiate. The
foregoing includes, without limitation, actions, suits, proceedings or
investigations pending or threatened in writing (or any basis therefore known to
the Company) involving the prior employment of any of the Company's employees,
their use in connection with the Company's business, or any information or
techniques allegedly proprietary to any of their former employers, or their
obligations under any agreements with prior employers.
2.8 INTELLECTUAL PROPERTY. To its knowledge, the Company owns or
possesses sufficient legal rights to all patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information and proprietary
rights and processes necessary for its business without any conflict with, or
infringement of, the rights of others. There are no outstanding options,
licenses, or agreements of any kind relating to the foregoing, nor is the
Company bound by or a party to any options, licenses or agreements of any kind
with respect to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information, proprietary rights and processes of any
other person or entity. The Company has not received any communications alleging
that the Company has violated or, by conducting its business, would violate any
of the patents, trademarks, service marks, trade names, copyrights, trade
secrets or other proprietary rights or processes of any other person or entity.
The Company is not aware that any of its employees is obligated under any
contract (including licenses, covenants or commitments of any nature) or other
agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of such employee's best
efforts to promote the interest of the Company or that would conflict with the
Company's business. Neither the execution or delivery of this Agreement, nor the
carrying on of the Company's business by the employees of the Company, nor the
conduct of the Company's business as proposed, will, to the Company's knowledge,
conflict with or result in a breach of the terms, conditions, or provisions of,
or constitute a default under, any contract, covenant or instrument under which
any such employee is now obligated. The Company does not believe it is or will
be necessary to use any inventions of any of its employees (or persons it
currently intends to hire) made prior to their employment by the Company.
2.9 COMPLIANCE WITH OTHER INSTRUMENTS.
(a) The Company is not in violation or default of any
provisions of its Certificate or Bylaws or of any instrument, judgment, order,
writ, decree or contract to which it is a party or by which it is bound or, to
its knowledge, of any provision of federal or state statute, rule or regulation
applicable to the Company. The execution, delivery and performance of the
Agreements and the consummation of the transactions contemplated hereby or
thereby will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
default under any such provision, instrument, judgment, order, writ, decree or
contract or an event which results in the creation of any lien, charge or
encumbrance upon any assets of the Company.
(b) To its knowledge, the Company has avoided every condition,
and has not performed any act, the occurrence of which would result in the
Company's loss of any right granted under any license, distribution agreement or
other agreement.
2.10 AGREEMENTS; ACTION.
(a) Other than (i) standard employee benefits generally made
available to all employees, (ii) standard director and officer indemnification
agreements approved by the Board of Directors, and (iii) the purchase of shares
of the Company's capital stock and the issuance of options to purchase shares of
the
5
Company's common stock, in each instance, approved by the Board of Directors,
there are no agreements, understandings or proposed transactions between the
Company and any of its officers, directors, affiliates, or any affiliate
thereof.
(b) Except for agreements explicitly contemplated by the
Agreements, there are no agreements, understandings, instruments, contracts or
proposed transactions to which the Company or any of its subsidiaries is a party
or by which it is bound that involve (i) obligations (contingent or otherwise)
of, or payments to, the Company or any of its subsidiaries in excess of,
$25,000, (ii) the license of any patent, copyright, trade secret or other
proprietary right to or from the Company or any of its subsidiaries, or (iii)
the grant of rights to manufacture, produce, assemble, license, market, or sell
its products to any other person or affect the Company's exclusive right to
develop, manufacture, assemble, distribute, market or sell its products.
(c) Neither the Company nor any of its subsidiaries has (i)
declared or paid any dividends, or authorized or made any distribution upon or
with respect to any class or series of its capital stock, (ii) incurred any
indebtedness for money borrowed or incurred any other liabilities individually
in excess of $25,000 or in excess of $100,000 in the aggregate, (iii) made any
loans or advances to any person, other than ordinary advances for travel
expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or
rights, other than the sale of its inventory in the ordinary course of business.
(d) The Company has not engaged in the past three months in
any discussion (i) with any representative of any corporation or corporations
regarding the merger of the Company with or into any such corporation or
corporations in which more than 50% of the voting power of the Company would be
disposed of, (ii) with any representative of any corporation, partnership,
association or other business entity or any individual regarding the sale,
conveyance or disposition of all or substantially all of the assets of the
Company or a transaction or series of related transactions in which more than
50% of the voting power of the Company would be disposed of, or (iii) regarding
any other form of liquidation, dissolution or winding up of the Company.
(e) For the purposes of subsections (b) and (c) above, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including persons
or entities the Company has reason to believe are affiliated with that person or
entity) shall be aggregated for the purposes of meeting the individual minimum
dollar amounts of each such subsection.
2.11 NO CONFLICT OF INTEREST. The Company is not indebted, directly
or indirectly, to any of its officers or directors or to their respective
spouses or children, in any amount whatsoever other than in connection with
expenses or advances of expenses incurred in the ordinary course of business or
relocation expenses of employees. None of the Company's officers or directors,
or any members of their immediate families, are, directly or indirectly,
indebted to the Company (other than in connection with purchases of the
Company's stock) or, to the Company's knowledge, have any direct or indirect
ownership interest in any firm or corporation with which the Company is
affiliated or with which the Company has a business relationship, or any firm or
corporation which competes with the Company except that officers, directors
and/or stockholders of the Company may own stock in (but not exceeding two
percent of the outstanding capital stock of) any publicly traded company that
may compete with the Company. To the Company's knowledge, none of the Company's
officers or directors or any members of their immediate families are, directly
or indirectly, interested in any material contract with the Company. The Company
is not a guarantor or indemnitor of any indebtedness of any other person, firm
or corporation.
2.12 RIGHTS OF REGISTRATION AND VOTING RIGHTS. Holders of 3,747,000
shares of our common stock have unlimited piggyback registration rights, subject
to prorata cutback at underwriter's discretion. Registration expenses (exclusive
of underwriting discounts, selling commissions and stock transfer taxes) will be
borne by us. The registration rights will terminate at such time as a holder may
sell his shares within a three-month period pursuant to Rule 144. To the
Company's knowledge, no stockholder of the Company has entered into any
agreements with respect to the voting of capital shares of the Company.
2.13 TITLE TO PROPERTY AND ASSETS. The Company owns its property and
assets free and clear of all mortgages, liens, loans and encumbrances, except
such encumbrances and liens which arise in the ordinary course of business and
do not materially impair the Company's ownership or use of such property or
assets. With
6
respect to the property and assets it leases, the Company is in compliance with
such leases and, to its knowledge, holds a valid leasehold interest free of any
liens, claims or encumbrances.
2.14 FINANCIAL STATEMENTS. The Company has no material liabilities,
contingent or otherwise, other than (i) liabilities incurred in the ordinary
course of business that are not material, individually or in the aggregate, and
(ii) obligations under contracts and commitments incurred in the ordinary course
of business which would not be required under generally accepted accounting
principles to be reflected in the financial statements prepared in accordance
with generally accepted accounting principles.
2.15 TAX RETURNS AND PAYMENTS. The Company has filed all tax returns
and reports as required by law. These returns and reports are true and correct
in all material respects. The Company has paid all taxes and other assessments
due.
2.16 INSURANCE. The Company has in full force and effect fire and
casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed.
2.17 LABOR AGREEMENTS AND ACTIONS. The Company is not bound by or
subject to (and none of its assets or properties is bound by or subject to) any
written or oral, express or implied, contract, commitment or arrangement with
any labor union, and no labor union has requested or, to the knowledge of the
Company, has sought to represent any of the employees, representatives or agents
of the Company. There is no strike or other labor dispute involving the Company
pending, or to the knowledge of the Company threatened, which could have a
material adverse effect on the assets, properties, financial condition,
operating results, or business of the Company, nor is the Company aware of any
labor organization activity involving its employees. The employment of each
officer and employee of the Company is terminable at the will of the Company.
2.18 CONFIDENTIAL INFORMATION AND INVENTION ASSIGNMENT AGREEMENTS.
Each employee, consultant and officer of the Company has executed an agreement
with the Company regarding confidentiality and proprietary information. The
Company is not aware that any of its employees or consultants is in violation
thereof, and the Company will use its best efforts to prevent any such
violation.
2.19 PERMITS. The Company has all franchises, permits, licenses and
any similar authority necessary for the conduct of its business, the lack of
which could materially and adversely affect the business, properties, prospects,
or financial condition of the Company. The Company is not in default in any
material respect under any of such franchises, permits, licenses or other
similar authority.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser hereby
represents and warrants to the Company that:
3.1 AUTHORIZATION. Such Purchaser has full power and authority to
enter into this Agreement. The Agreement, when executed and delivered by the
Purchaser, will constitute valid and legally binding obligations of the
Purchaser, enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and any other laws of general application affecting enforcement of
creditors' rights generally, and as limited by laws relating to the availability
of a specific performance, injunctive relief, or other equitable remedies.
3.2 PURCHASE ENTIRELY FOR OWN ACCOUNT. This Agreement is made with
the Purchaser in reliance upon the Purchaser's representation to the Company,
which by the Purchaser's execution of this Agreement, the Purchaser hereby
confirms, that the Securities to be acquired by the Purchaser will be acquired
for investment for the Purchaser's own account, not as a nominee or agent, and
not with a view to the resale or distribution of any part thereof, and that the
Purchaser has no present intention of selling, granting any participation in, or
otherwise distributing the same. By executing this Agreement, the Purchaser
further represents that the Purchaser does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Securities. The Purchaser has not been formed for the specific purpose of
acquiring the Securities.
7
3.3 DISCLOSURE OF INFORMATION. The Purchaser has had an opportunity
to discuss the Company's business, management, financial affairs and the terms
and conditions of the offering of the Securities with the Company's management
and has had an opportunity to review the Company's facilities. The Purchaser
understands that such discussions, as well as any other written information
delivered by the Company to the Purchaser, were intended to describe the aspects
of the Company's business which it believes to be material. THE PURCHASER
ACKNOWLEDGES AND AGREES THAT, AT ANYTIME FOLLOWING THE CLOSING, THE COMPANY MAY
SELL AND ISSUE EQUITY SECURITIES THAT ARE DILUTIVE TO THE SECURITIES AND ARE ON
ECONOMIC TERMS SUBSTANTIALLY MORE FAVORABLE TO THE PURCHASERS THEREOF THAN THE
TERMS OF THIS AGREEMENT. The foregoing, however, does not limit or modify the
representations or warranties of the Company in Section 2 of this Agreement or
the right of Purchaser to rely thereon.
3.4 RESTRICTED SECURITIES. The Purchaser understands that the
Securities have not been, and will not be, registered under the Securities Act,
by reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Purchaser's representations as
expressed herein. The Purchaser understands that the Securities are "restricted
securities" under applicable U.S. federal and state securities laws and that,
pursuant to these laws, the Purchaser must hold the Securities indefinitely
unless they are registered with the Securities and Exchange Commission and
qualified by state authorities, or an exemption from such registration and
qualification requirements is available. The Purchaser acknowledges that the
Company has no obligation to register or qualify the Securities for resale. The
Purchaser further acknowledges that if an exemption from registration or
qualification is available, it may be conditioned on various requirements
including, but not limited to, the time and manner of sale, the holding period
for the Securities, and on requirements relating to the Company which are
outside of the Purchaser's control, and which the Company is under no obligation
and may not be able to satisfy.
3.5 LEGENDS. The Purchaser understands that the Securities, and any
securities issued in respect thereof or exchange therefor, may bear one or all
of the following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A
FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933."
(b) Any legend required by the Blue Sky laws of any state to
the extent such laws are applicable to the shares represented by the certificate
so legended.
3.6 ACCREDITED INVESTOR. The Purchaser is an accredited investor as
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
3.7 FOREIGN INVESTORS. If the Purchaser is not a United States
person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986,
as amended), such Purchaser hereby represents that it has satisfied itself as to
the full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Securities or any use of this Agreement,
including (i) the legal requirements within its jurisdiction for the purchase of
the Securities, (ii) any foreign exchange restrictions applicable to such
purchase, (iii) any governmental or other consents that may need to be obtained,
and (iv) the income tax and other tax consequences, if any, that may be relevant
to the purchase, holding, redemption, sale, or transfer of the Securities. Such
Purchaser's subscription and payment for and continued beneficial ownership of
the Securities, will not violate any applicable securities or other laws of the
Purchaser's jurisdiction.
3.8 NO GENERAL SOLICITATION. Neither the Purchaser, nor any of its
officers, employees, agents, directors, stockholders or partners has engaged the
services of a broker, investment banker or finder to contact any potential
investor nor has the Purchaser or any of the Purchaser's officers, employees,
agents, directors, stockholders or partners, agreed to pay any commission, fee
or other remuneration to any third party to solicit or
8
contact any potential investor. Neither the Purchaser, nor any of its officers,
directors, employees, agents, stockholders or partners has (a) engaged in any
general solicitation, or (b) published any advertisement in connection with the
offer and sale of the Securities.
4. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT CLOSING. The obligations
of each Purchaser to the Company under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Section 2 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
Initial Closing.
4.2 PERFORMANCE. The Company shall have performed and complied with
all covenants, agreements, obligations and conditions contained in this
Agreement that are required to be performed or complied with by it on or before
the Initial Closing.
4.3 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Stock pursuant to this Agreement shall be obtained and effective as of the
Closing.
4.4 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to Purchaser, and Purchaser (or its counsel) shall have received all
such counterpart original and certified or other copies of such documents as
reasonably requested.
5. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of
the Company to each Purchaser under this Agreement are subject to the
fulfillment, on or before the Closing, of each of the following conditions,
unless otherwise waived:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Purchaser contained in Section 3 shall be true and correct in
all material respects on and as of the Closing with the same effect as though
such representations and warranties had been made on and as of the Closing.
5.2 PERFORMANCE. All covenants, agreements and conditions contained
in this Agreement to be performed by the Purchasers on or prior to the Closing
shall have been performed or complied with in all material respects.
5.3 QUALIFICATIONS. All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the lawful issuance and sale of
the Stock pursuant to this Agreement shall be obtained and effective as of the
Closing.
5.4 BOARD APPROVAL. The Company's Board of Directors shall have
authorized the sale and issuance of the Securities.
6. MISCELLANEOUS.
6.1 SURVIVAL OF WARRANTIES. Unless otherwise set forth in this
Agreement, the warranties, representations and covenants of the Company and the
Purchasers contained in or made pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the Closing.
6.2 TRANSFER; SUCCESSORS AND ASSIGNS. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
9
6.3 GOVERNING LAW/VENUE. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of Washington. Each party agrees that it will not bring any action
relating to this Agreement or any acts or transactions contemplated hereby in
any court other than a federal or state court sitting in King County, State of
Washington. Each party further agrees that it will submit to the jurisdiction of
such court and that it will not seed to change the venue of such action.
6.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
6.5 TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon delivery, when delivered
personally or by overnight courier or sent by fax (upon customary confirmation
of receipt), or 48 hours after being deposited in the U.S. mail, as certified or
registered mail, with postage prepaid, addressed to the party to be notified at
such party's address as set forth on the signature page or Exhibit A hereto, or
as subsequently modified by written notice.
6.7 FINDER'S FEE. Each party represents that it neither is nor will
be obligated for any finder's fee or commission in connection with this
transaction. Each Purchaser agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finder's fee (and the costs and expenses of defending against such liability or
asserted liability) for which each Purchaser or any of its officers, employees,
or representatives is responsible. The Company agrees to indemnify and hold
harmless each Purchaser from any liability for any commission or compensation in
the nature of a finder's fee (and the costs and expenses of defending against
such liability or asserted liability) for which the Company or any of its
officers, employees or representatives is responsible.
6.8 ATTORNEY'S FEES. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of any of the
Agreements, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
6.9 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the Company and the holders
of at least a majority of the Common Stock issued or issuable upon conversion of
the Stock. Any amendment or waiver effected in accordance with this Section 6.9
shall be binding upon the Purchasers and each transferee of the Securities, each
future holder of all such Securities, and the Company.
6.10 SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
6.11 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any party under this Agreement, upon any
breach or default of any other party under this Agreement, shall impair any such
right, power or remedy of such non-breaching or non-defaulting party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
6.12 ENTIRE AGREEMENT. This Agreement, and the documents referred to
herein constitute the entire agreement between the parties hereto pertaining to
the subject matter hereof, and any and all other written or oral agreements
relating to the subject matter hereof existing between the parties hereto are
expressly canceled.
10
6.13 EXCULPATION AMONG PURCHASERS. Each Purchaser acknowledges that it is
not relying upon any person, firm or corporation, other than the Company and its
officers and directors, in making its investment or decision to invest in the
Company. Each Purchaser agrees that no Purchaser nor the respective controlling
persons, officers, directors, partners, agents, or employees of any Purchaser
shall be liable to any other Purchaser for any action heretofore or hereafter
taken or omitted to be taken by any of them in connection with the purchase of
the Securities.
The parties have executed this Common Stock and Warrant Purchase Agreement
as of the date first written above.
COMPANY:
HELIX BIOMEDIX, INC.
By:
---------------------------------------------
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President and CEO
11
Purchaser's Signature Page
---------------------------------------------
Name (Printed)
---------------------------------------------
Signature Date
---------------------------------------------
Name if jointly held (Printed)
----------------------------------------------
Signature Date
----------------------------------------------
Title if Applicable
----------------------------------------------
Social Security Number or ID
----------------------------------------------
Address
----------------------------------------------
----------------------------------------------
----------------------------------------------
Email Address
----------------------------------------------
Telephone
----------------------------------------------
Facsimile
Signature Page to Stock and Warrant Purchase Agreement
12
EXHIBIT A
SCHEDULE OF PURCHASERS
PURCHASER SHARES OF COMMON STOCK SHARES OF WARRANT STOCK $ INVESTED
--------- ---------------------- ----------------------- ----------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 17,000 0 $25,500
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 10,000 0 $10,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 10,000 0 $15,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 66,667 0 $100,000
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 26,667 0 $40,000
▇▇▇▇▇ ▇▇▇▇▇▇ 17,000 0 $17,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 34,000 0 $51,000
RBFSC, Inc. 750,000 0 $1,125,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 28,000 0 $42,000
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 20,000 0 $30,000
ABC Investment Group 500,000 0 $750,000
▇▇▇▇▇▇, ▇▇▇▇ 10,000 0 $15,000
▇▇▇▇▇▇, ▇▇▇▇▇▇ 10,000 0 $15,000
▇▇▇▇▇▇, ▇▇▇▇▇ 10,000 0 $15,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ 10,000 0 $15,000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 16,667 0 $25,000
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 12,500 0 $18,750
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ 10,000 0 $15,000
▇▇▇▇▇, ▇▇▇▇▇▇ 10,000 0 $15,000
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. 13,333 0 $20,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 25,000 0 $37,500
▇▇▇▇▇▇▇, ▇▇▇▇ 25,000 0 $37,500
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 33,333 0 $50,000
13
EXHIBIT B - FORM OF WARRANT
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR UNLESS (i) SOLD PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS AND (ii) AT THE OPTION OF
THE COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
SUCH REGISTRATION IS NOT REQUIRED HAS BEEN DELIVERED TO THE COMPANY.
--------------------------------------------------------------------------------
HOLDER(S): WARRANT NUMBER:
--------------------------------------------------------------------------------
NO. OF SHARES FOR WHICH THIS WARRANT
IS INITIALLY EXERCISABLE:
--------------------------------------------------------------------------------
ISSUE DATE: TERMINATION DATE:
--------------------------------------------------------------------------------
WARRANT FOR THE
PURCHASE OF SHARES OF COMMON STOCK
OF
HELIX BIOMEDIX, INC.
THIS CERTIFIES THAT, for valuable consideration, that the undersigned,
together with (his/her/its) successors and permitted assigns (the "Holder") is
entitled to purchase, subject to the terms set forth below, up to
_________________shares of duly authorized, validly issued, fully paid and
nonassessable shares of common stock, $0.001 par value per share (the "Common
Stock") of Helix BioMedix, Inc., a Delaware corporation (the "Company").
1. Exercise of Warrant. The terms and conditions upon which this Warrant
may be exercised, and the Common Stock covered hereby (the "Warrant Stock") may
be purchased, are as follows:
(a) Term. Subject to the terms hereof, the purchase right represented
by this Warrant may be exercised in whole or in part, but not as to a fractional
share of Warrant Stock, at any time and from time to time until the close of
business on the fifth anniversary hereof.
(b) Number of Shares. The number of shares of Common Stock for which
this Warrant is initially exercisable is the amount set forth above the Holder's
signature and on page one of this Warrant, which number is subject to adjustment
pursuant to Section 2 of this Warrant.
(c) Purchase Price. The per share purchase price for the shares of
Common Stock to be issued upon exercise of this Warrant shall be equal to two
dollars ($2.00) per share (the "Warrant Price").
(d) Method of Exercise. The exercise of the purchase rights evidenced
by this Warrant shall be effected by (a) the surrender of the Warrant, together
with a duly executed copy of the form of a subscription attached hereto, to the
Company at its principal offices at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (or such other office or agency of the Company as it may designate by
notice in writing to the Holder at the address of the Holder appearing on the
books of the Company) and (b) the delivery of the purchase price in an amount
equal to the number of shares for which the purchase rights hereunder are being
exercised multiplied by the Warrant Price, which amount may be paid by cashier's
check payable to the Company's order or by wire transfer to the Company's
account. Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which this Warrant
shall have been surrendered to the Company together with the purchase price as
provided herein or at such later date as may be specified in the executed form
of subscription, and at such
Exhibit B-Warrant
1
time the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such exercise as
provided herein shall be deemed to have become the holder or holders of record
thereof.
(e) Exercise by Exchange. In addition to and without limiting the
rights of the Holder under the terms hereof, at the Holder's option, and if
approved by the Company, this Warrant may be exercised during the term specified
under Section 1(a) by being exchanged in whole or in part prior to its
expiration for a number of shares of Common Stock having an aggregate fair
market value on the date of such exercise equal to the difference between (x)
the fair market value of the number of shares of Common Stock subject to this
Warrant designated by the Holder hereof on the date of the exercise and (y) the
aggregate Warrant Price for such shares in effect at such times. The following
formula illustrates how many shares would then be issued upon exercise pursuant
to this Section 1(e):
Let: FMV = Fair market value per share of Common Stock at
date of exercise.
WP = Warrant Price at date of exercise.
N = Number of shares desired to be exercised.
X = Number of shares issued upon exercise.
Therefore: X = (FMV)(N)-(WP)(N)
----------------
FMV
Upon any such exercise, the number of shares of Common Stock
purchasable upon exercise of this Warrant shall be reduced by such designated
number of shares of Common Stock and, if a balance of purchasable shares of
Common Stock remains after such exercise, the Company shall execute and deliver
to the Holder hereof a new warrant for such balance of shares of Common Stock.
No payment to the Company of any cash or other consideration shall
be required from the Holder of this Warrant in connection with any exercise of
this Warrant by exchange pursuant to this Section 1(e). Such exchange shall be
effective upon the date of receipt by the Company of the original Warrant
surrendered for cancellation and a written request from the Holder hereof that
the exchange pursuant to this section be made, or at such later date as may be
specified in such request.
For the purposes of this Warrant, the "fair market value" of any
number of shares of Common Stock shall mean:
(i) as long as the Common Stock is traded on the
Over-The-Counter Bulletin Board or is traded on the American Stock Exchange (or
equivalent recognized source of quotations), an amount equal to the average of
the high and low reported trading prices of one share of such securities for the
three (3) trading days prior to the surrender of this Warrant for exchange in
accordance with the terms hereof.
(ii) in all other cases, the fair value as determined in good
faith by the Board of Directors of the Company and reasonably agreed to by the
Holder.
(f) Issuance of Shares. As soon as reasonably practicable after each
exercise of this Warrant, in whole or in part, the Company at its expense will
cause to be issued in the name of and delivered to the Holder hereof or as such
Holder (upon payment by such Holder of any applicable transfer taxes) may
direct,
Exhibit B-Warrant
2
(i) a certificate or certificates for the number of duly
authorized validly issued, fully paid and nonassessable shares of Common Stock
to which such Holder shall be entitled upon such exercise, and
(ii) in case such exercise is in part only, a new warrant or
warrants of like tenor, calling in the aggregate on the face or faces thereof
for the number of shares of Common Stock (without giving effect to any
adjustment thereof) to the number of such shares called for on the face of this
Warrant minus the number of such shares designated by the Holder upon such
exercise as provided herein.
2. Certain Adjustments.
(a) Mergers, Consolidations or Sale of Assets. If at any time after
the date hereof while this Warrant remains outstanding and unexpired there shall
be a capital reorganization (other than a combination or subdivision of Warrant
Stock otherwise provided for herein), or a merger or consolidation of the
Company with or into another corporation, or the sale of the Company's
properties and assets as, or substantially as, an entirety to any other person,
then, as a part of such reorganization, merger, consolidation or sale, lawful
provision shall be made so that the Holder shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified in this
Warrant and upon payment of the purchase price, the number of shares of stock or
other securities, cash or property of the Company or the successor corporation
resulting from such reorganization, merger, consolidation or sale, to which a
Holder of the Common Stock deliverable upon exercise of this Warrant would have
been entitled under the provisions of the agreement in such reorganization,
merger, consolidation or sale if this Warrant had been exercised immediately
before that reorganization, merger, consolidation or sale. In any such case,
appropriate adjustment (as determined reasonably and in good faith by the
Company's Board of Directors) shall be made in the application of the provisions
of this Warrant with respect to the rights and interests of the Holder after the
reorganization, merger, consolidation or sale to the end that the provisions of
this Warrant (including adjustment of the Warrant Price then in effect and the
number of shares of Warrant Stock) shall be applicable after that event, as near
as reasonably may be, in relation to any shares or other property deliverable
after that event upon exercise of this Warrant.
(b) Splits and Subdivisions; Dividends. In the event the Company
should at any time or from time to time while this Warrant remains outstanding
and unexpired effect or fix a record date for the effectuation of a split or
subdivision of the outstanding shares of its Common Stock or the determination
of the holders of Common Stock entitled to receive a dividend or other
distribution payable in additional shares of Common Stock or other securities or
warrants, options or other rights convertible into, or entitling the holder
thereof to receive directly or indirectly, additional shares of Common Stock
(hereinafter referred to as the "Common Stock Equivalents") without payment of
any consideration by such holder for the additional shares of Common Stock or
Common Stock Equivalents (including the additional shares of Common Stock
issuable upon conversion or exercise thereof), then, as of such record date (or
the date of distribution, split or subdivision if no record date is fixed), the
per share Warrant Price shall be appropriately increased in proportion to such
increase (or potential increase) of outstanding shares.
(c) Combination of Shares. If the number of shares of Common Stock
outstanding at any time after the date hereof is decreased by a combination of
the outstanding shares of Common Stock, the per share purchase price shall be
appropriately increased and the number of shares of Warrant Stock shall be
appropriately decreased in proportion to such decrease in outstanding shares.
(d) Certificate as to Adjustments. In the case of each adjustment
or readjustment of the Warrant Price pursuant to this Section 2, the Company at
its expense will promptly compute such adjustment or readjustment in accordance
with the terms hereof and cause a certificate, signed by the Company's principal
financial officer, setting forth such adjustment or readjustment and showing in
detail the facts upon which such adjustment or readjustment is based to be
delivered to the Holder of this Warrant. The Company will furnish or cause to be
furnished to such Holder a certificate setting forth:
(i) Such adjustments and readjustments;
(ii) The purchase price at the time in effect and how it was
calculated; and
Exhibit B-Warrant
3
(iii) The number of shares of Warrant Stock and the amount, if
any, of other property at the time receivable upon the exercise of the Warrant.
(e) Notices of Record Date, etc. In the event of:
(i) Any taking by the Company of a record of the holders of
any class of securities of the Company for the purpose of determining the
holders thereof who are entitled to receive any dividend (other than a cash
dividend payable at the same rate as that of the last such cash dividend
theretofore paid) or other distribution, or any right to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any other securities or
property, or to receive any other right; or
(ii) Any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
transfer of all or substantially all of assets of the Company to any other
person or any consolidation or merger involving the Company; or
(iii) Any voluntary or involuntary dissolution, liquidation or
winding-up of the Company; the Company will mail to the Holder of this Warrant
at least ten (10) business days prior to the earliest date specified therein, a
notice specifying:
(1) The date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and the amount and
character of such dividend, distribution or right; and
(2) The date on which any such reorganization,
reclassification, transfer, consolidation, merger, dissolution, liquidation or
winding-up is expected to become effective and the record date for determining
stockholders entitled to vote thereon and the time.
3. Fractional Shares. No fractional shares shall be issued in connection
with any exercise of this Warrant. In lieu of the issuance of such fractional
share, the Company shall make a cash payment equal to the then fair market value
of such fractional share as determined in good faith by the Company's Board of
Directors.
4. No Privilege of Stock Ownership. Prior to the exercise of this Warrant,
the Holder shall not be entitled, by virtue of holding this Warrant, to any
rights of a shareholder of the Company, including (without limitation) the right
to vote, receive dividends or other distributions, exercise preemptive rights or
be notified of shareholder meetings, and such Holder shall not be entitled to
any notice or other communication concerning the business or affairs of the
Company. Nothing in this Section 4, however, shall limit the right of the Holder
to be provided the notices described in Section 2 hereof, or to participate in
distributions described in Section 2 hereof if the Holder exercises this
Warrant.
5. Limitation of Liability. Except as otherwise provided herein, in the
absence of affirmative action by the Holder hereof to purchase the Warrant
Stock, no mere enumeration herein of the rights or privileges of the Holder
hereof shall give rise to any obligation of such Holder to purchase any
securities or any liability of such Holder for the purchase price or as a
shareholder of the Company, whether such obligation or liability is asserted by
the Company or by creditors of the Company.
6. Representations and Warranties of the Holder. The Holder represents and
warrants to the Company as follows:
(a) Purchase Entirely for Own Account. This Warrant is made with the
Holder in reliance upon such Holder's representation to the Company, which by
such Holder's execution of this Warrant such Holder hereby confirms, that the
Warrant and Warrant Stock are being acquired for investment for such Holder's
own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof in violation of the federal or state securities
laws.
(b) Investment Experience. The Holder represents that it can bear the
economic risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Warrant and the Warrant Stock. If an entity, the
Holder also represents it has not been organized solely for the purpose of
acquiring the Warrant or the Warrant Stock.
Exhibit B-Warrant
4
(c) Restricted Securities. The Holder understands that the Warrant
being issued hereunder and the Warrant Stock to be purchased hereunder are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Securities Act of
1933, as amended (the "Securities Act"), only in certain limited circumstances.
In this connection, the Holder represents that it is familiar with Securities
and Exchange Commission Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Securities Act.
(d) Legends. It is understood that the certificates evidencing the
Warrant Stock may bear a legend substantially in the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS
(COLLECTIVELY, THE "SECURITIES LAWS"). THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE
SECURITIES UNDER THE SECURITIES LAWS (i) UNLESS SOLD PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES LAWS AND (ii) THE
COMPANY, IF IT SO REQUESTS, HAS RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
In addition, the certificates evidencing the Warrant Stock may bear any legend
required by the Company's charter documents or the laws of the State of
Washington and any other state in which the securities will be issued.
7. Transfers and Exchanges.
(a) The Holder may not sell, hypothecate, pledge or otherwise dispose
of any interest in the Warrant or the Warrant Stock unless such transfer would
not violate any provision of this Section 7.
(b) Subject to the conditions of this Section 7, upon delivery to the
Company of a duly completed and executed Assignment in substantially the form
attached hereto, a new warrant shall be issued to the transferee therein named.
All new warrants issued in connection with transfers or exchanges shall not
require the signature of the new Holder hereof and shall be identical in form
and provision to this Warrant except as to the number of shares.
(c) It shall be a condition to any transfer of this Warrant that the
transferee shall be an accredited investor, within the meaning of the Securities
Act, and that the Company shall have received, at the time of such transfer or
exercise (i) a representation letter, or at the option of the Company, a legal
opinion, in form and substance reasonably satisfactory to the Company and its
counsel, reciting the pertinent circumstances surrounding the proposed transfer
and stating that such transfer is exempt from the prospectus and registration
requirements of the Securities Act and applicable state securities laws and (ii)
a statement in writing from, and signed by, any proposed transferees containing
the same representations and warranties as set forth in Section 6 hereof and
agreeing to be bound by the provisions of this Section 7, such statement to be
in the form of Assignment attached hereto. Notwithstanding the foregoing, as
long as the transfer of this Warrant is in compliance with applicable securities
laws and there are no significant issues of fact (such as whether or not the
Holder is an "affiliate," as such term is defined in Rule 144 of the Securities
Act) or unusual questions of law, the requirement of a representation letter or
legal opinion shall not apply to (a) the transfer of this Warrant or any part
thereof to a partnership of which the Holder is a partner or to the beneficial
owners or affiliates of such partnership, (b) the transfer of this Warrant or
any part thereof to beneficial owners, employees or affiliates of the Holder,
(c) bona fide gifts to a member of a Holder's immediate family or trustee for a
member of a Holder's immediate family, (d) transfers by will upon the death of a
Holder, or (e) transfers pursuant to a divorce or dissolution of the marriage of
a Holder.
(d) Ownership of Warrants. The Company may treat the person in whose
name any Warrant is registered on the register kept by the Company or its
transfer agent as the owner and Holder thereof for all purposes, notwithstanding
any notice to the contrary. A Warrant, if properly assigned, may be exercised by
a new
Exhibit B-Warrant
5
Holder without a new Warrant first having been issued. Nothing in this Section
7(d) shall relieve the Holder of his obligations under Section 7(c) hereof.
8. Successors and Assigns. The terms and provisions of this Warrant shall
be binding upon the Company and the Holder and their respective successors and
assigns, subject at all times to the restrictions set forth herein.
9. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it and its counsel of the loss,
theft, destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to the Company,
and upon reimbursement to the Company of all reasonable expenses incidental
thereto, and upon surrender and cancellation of this Warrant, if mutilated, the
Company will make and deliver a new warrant of like tenor and dated as of such
cancellation, in lieu of this Warrant.
10. Saturdays, Sundays, Holiday, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall be a Saturday or Sunday or shall be a legal holiday in the State of
Washington, then such action may be taken or such right may be exercised on the
next succeeding day not a Saturday, Sunday or legal holiday.
11. Amendments and Waivers. Any term of this Warrant may be amended and
the observance of any term of this Warrant may be waived (either generally or in
a particular instance and either retroactively or prospectively) only with the
written consent of the Company and the Holder. Any such amendment or waiver
shall be binding on the parties.
12. Governing Law. The terms and conditions of this Warrant shall be
governed by and construed in accordance with the law of the State of Washington,
without regard to conflict of law provisions.
13. Notices. All notices and other communications under this Warrant shall
be in writing and shall be delivered in person, via facsimile machine, sent by
documented overnight delivery service, or mailed by registered or certified
mail, return receipt requested, postage prepaid, addressed (a) if to any Holder
of any Warrant, at the registered address of such Holder as set forth in the
register kept at the principal office of the Company, or (b) if to the Company,
to the attention of its President or Chief Financial Officer at its principal
offices, provided that the exercise of any Warrant shall be effected in the
manner provided in Section 1. Unless otherwise specified in this Warrant, all
such notices and other written communications shall be effective (and considered
delivered and received for the purposes of this Agreement) (i) if delivered,
upon delivery, (ii) if by facsimile machine during normal business hours upon
transmission with confirmation of receipt by the receiving party's facsimile
terminal and if not sent during normal business hours, then on the next day,
(iii) if sent by documented overnight delivery service, on the date following
the date on which such notice is delivered to such overnight delivery service
for mailing, or (iv) if mailed via first-class regular mail, three (3) day after
depositing in the U.S. Mail.
Exhibit B-Warrant
6
IN WITNESS WHEREOF, the parties have executed this Warrant effective as of
the date first written above.
THE COMPANY:
HELIX BIOMEDIX, INC.,
Delaware Corporation
By:
--------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President and Chief
Executive Officer
Address: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Number of shares for which this warrant is
initially exercisable:
HOLDER:
------------------------------------------
(Signature)
------------------------------------------
(Signature if joint)
Title if applicable:
---------------------
Address:
---------------------------------
Facsimile:
-------------------------------
Soc. Sec. No. or Tax ID:
-----------------
Exhibit B-Warrant
7
SUBSCRIPTION
Helix BioMedix, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, ______________________________________hereby elects to
purchase, pursuant to the provisions of the Warrant dated _____________________,
held by the undersigned, _____________shares of Common Stock of Helix BioMedix,
Inc., a Delaware corporation, and tenders herewith payment of the purchase price
of such shares in full.
The undersigned hereby confirms and acknowledges the investment
representations and warranties made in Section 6 of the Warrant and accepts such
shares subject to the restrictions of the Warrant, copies of which are available
from the Secretary of the Company.
Date: Print Name(s):
------------------- --------------------------------
---------------------------------
Signature:
------------------------------------
Title if applicable:
--------------------------
Signature:
-----------------------------------
Title if applicable:
--------------------------
Address:
--------------------------------------
--------------------------------------
Exhibit B-Warrant
8
FORM OF ASSIGNMENT
The undersigned hereby assigns this Warrant to
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee:
-----------------------------
and irrevocably appoints ___________________ as agent to transfer this Warrant
on the books of the Company. The agent may substitute another to act for him
or it.
Date:
--------------
Signed:
-----------------------------------------------------------------
-----------------------------------------------------------------
(All owners must sign exactly as name(s) appear(s) on the front of this Warrant)
The undersigned assignee hereby confirms and acknowledges the investment
representations and warranties made in Section 6 of the Warrant and agrees to be
bound by the obligations set forth in the Warrant, copies of which are available
from the Secretary of the Company.
Date: By:
------------------- ---------------------------------
Name:
----------------------------
Title:
---------------------------
Exhibit B-Warrant
9