Attached files
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10-Q - QUARTERLY REPORT 12-31-2009 - OMNI BIO PHARMACEUTICAL, INC. | omnibio10q123109_2310.htm |
EX-10.2 - EXHIBIT 10.2 - OMNI BIO PHARMACEUTICAL, INC. | omnibio10q123109x102_2310.htm |
EX-31.2 - EXHIBIT 31.2 - OMNI BIO PHARMACEUTICAL, INC. | omnibio10q123109x312_2310.htm |
EX-31.1 - EXHIBIT 31.1 - OMNI BIO PHARMACEUTICAL, INC. | omnibio10q123109x311_2310.htm |
EX-32.1 - EXHIBIT 32.1 - OMNI BIO PHARMACEUTICAL, INC. | omnibio10q123109x321_2310.htm |
EX-32.2 - EXHIBIT 32.2 - OMNI BIO PHARMACEUTICAL, INC. | omnibio10q123109x322_2310.htm |
Exhibit
10.3
WARRANT
__
WARRANT
TO PURCHASE SHARES
OF
COMMON STOCK
OF
OMNI BIO PHARMACEUTICAL, INC.
Warrant
to Purchase _____ Shares of Common Stock
(subject
to adjustment as set forth herein)
Exercise
Price $3.75 Per Share
(subject
to adjustment as set forth herein)
VOID
AFTER 5 P.M., MDT, _______, 2014
THIS
SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY HAVE NOT
BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), IN RELIANCE UPON THE EXEMPTIONS FROM
REGISTRATION PROVIDED IN THE ACT AND REGULATION D UNDER THE ACT AND HAVE NOT
BEEN REGISTERED UNDER ANY STATE SECURITIES LAWS. AS SUCH, THE
PURCHASE OF THIS SECURITY WAS NECESSARILY WITH THE INTENT OF INVESTMENT AND NOT
WITH A VIEW FOR DISTRIBUTION. THEREFORE, ANY SUBSEQUENT TRANSFER OF
THIS SECURITY OR ANY INTEREST THEREIN WILL BE UNLAWFUL UNLESS IT IS REGISTERED
UNDER THE ACT AND ANY STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE. FURTHERMORE, IT IS UNLAWFUL TO CONSUMMATE A SALE OR
TRANSFER OF THIS SECURITY OR ANY INTEREST THEREIN, WITHOUT THE OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT THE PROPOSED TRANSFER OR SALE DOES NOT
AFFECT THE EXEMPTIONS RELIED UPON BY THE COMPANY IN ORIGINALLY DISTRIBUTING THE
SECURITY AND THAT REGISTRATION IS NOT REQUIRED.
Omni Bio Pharmaceutical, Inc.,
5350 South Roslyn, Suite 400, Greenwood Village, CO 80111 (the "Company"),
hereby certifies that, for value received, ___[name]___________, ____[Address]_____________
(who, together with any subsequent holder of the Warrant, is referred to as the
"Holder"), is entitled, subject to the terms and conditions set forth below, to
purchase from the Company at any time before 5 p.m., MDT time, on _________,
2014 (the "Expiration Date”), up to _____________ (_______) shares (the
“Shares”) of the Company's $.001 par value Common Stock (the "Common Stock") at
a purchase price of $3.75 per Share (the "Exercise Price").
The term "Warrant" as used herein shall
include this Warrant and any Warrants issued in substitution for or replacement
of this Warrant, or any Warrants into which this Warrant may be divided or
exchanged. The number and character of the securities purchasable
upon exercise of this Warrant and the Exercise Price are subject to adjustment
as provided below.
This Warrant may be assigned,
transferred, sold, offered for sale, or exercised, in whole or in part, by the
Holder upon compliance with all the pertinent provisions hereof.
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1.
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Exercise of
Warrant.
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(a)
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Subject
to the other terms and conditions of this Warrant, the purchase rights
evidenced by this Warrant may be exercised in whole or in part at any
time, and from time to time before the Expiration Date, by the Holder's
presentation and surrender of this Warrant to the Company at its principal
office, accompanied by a duly executed Notice of Exercise, in the form
attached to and by this reference incorporated in this Warrant as Exhibit A,
and by payment of the aggregate Exercise Price, in immediately available
funds, for that number of Shares specified in the Notice of
Exercise. In the event this Warrant is exercised in part only,
as soon as is practicable after the presentation and surrender of this
Warrant to the Company for exercise, the Company shall execute and deliver
to the Holder a new Warrant, containing the same terms and conditions as
this Warrant, evidencing the right of the Holder to purchase that number
of Shares as to which this Warrant has not been
exercised.
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(b)
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Upon
receipt of this Warrant by the Company as described in subsection (a)
above, the Holder shall be deemed to be the holder of record of the Shares
issuable upon such exercise, notwithstanding that the transfer books of
the Company may then be closed or that certificates representing such
Shares may not have been prepared or actually delivered to the
Holder.
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2.
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Exchange, Assignment
or Loss of Warrant.
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(a)
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This
Warrant may be sold, transferred or assigned at any time after the Warrant
has vested, in whole or in part, if (i) the transfer is by operation
of law as a result of the death of the Holder and (ii) to such other
persons for which transaction an exemption from the registration
requirements of the Act can be established to the satisfaction of the
Company. Any assignment or transfer of this Warrant shall be
made by the presentation and surrender of this Warrant to the Company at
its principal office, accompanied by a duly executed Assignment Form, in
the form attached to and by this reference incorporated in this Warrant as
Exhibit B. Upon
the presentation and surrender of these items to the Company, the Company,
at its sole expense, shall execute and deliver to the new Holder(s) a new
Warrant(s), containing the same terms and conditions as this Warrant, in
the name of the new Holder(s) as named in the Assignment Form, and this
Warrant shall at that time be
canceled.
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(b)
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The
Company will execute and deliver to the Holder a new Warrant containing
the same terms and conditions as this Warrant upon receipt by the Company
of evidence reasonably satisfactory to it of the loss, theft, destruction,
or mutilation of this Warrant, provided that (i) in the case of loss,
theft, or destruction, the Company receives from the Holder a reasonably
satisfactory indemnification, and (ii) in the case of mutilation, the
Holder presents and surrenders this Warrant to the Company for
cancellation. Any new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company
regardless of whether the Warrant that was lost, stolen, destroyed, or
mutilated shall be enforceable by anyone at any
time.
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3. Anti-Dilution
Provisions.
3.1 Stock Splits, Dividends,
Etc.
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(a)
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If
the Company shall at any time subdivide its outstanding shares of Common
Stock (or other securities at the time receivable upon the exercise of the
Warrant) by recapitalization, reclassification or split-up thereof, or if
the Company shall declare a stock dividend or distribute shares of Common
Stock to its stockholders, the number of shares of Common Stock subject to
this Warrant immediately prior to such subdivision shall be
proportionately increased, and if the Company shall at any time combine
the outstanding shares of Common Stock by recapitalization,
reclassification or combination thereof, the number of shares of Common
Stock subject to this Warrant immediately prior to such combination shall
be proportionately decreased. Any such adjustment and adjustment to the
Exercise Price pursuant to this section shall be effective at the
close of business on the effective date of such subdivision or combination
or if any adjustment is the result of a stock dividend or distribution
then the effective date for such adjustment based thereon shall be the
record date therefore.
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(b)
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Whenever
the number of shares of Common Stock purchasable upon the exercise of this
Warrant is adjusted, as provided in this section, the Exercise Price shall
be adjusted to the nearest cent by multiplying such Exercise Price
immediately prior to such adjustment by a fraction (x) the numerator of
which shall be the number of shares of Common Stock purchasable upon the
exercise immediately prior to such adjustment, and (y) the denominator of
which shall be the number of shares of Common Stock so purchasable
immediately thereafter.
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3.2
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Adjustment for
Reorganization, Consolidation, Merger, Etc. In case of
any reorganization of the Company (or any other corporation, the
securities of which are at the time receivable on the exercise of this
Warrant) shall consolidate with or merge into another corporation or
convey all or substantially all of its assets to another corporation,
then, and in each such case, the Holder of this Warrant upon the exercise
at any time after the consummation of such reorganization, consolidation,
merger or conveyance, shall be entitled to receive, in lieu of the
securities and property receivable upon the exercise of this Warrant prior
to such consummation, the securities or property to which such Holder
would have been entitled upon such consummation if such Holder had
exercised this Warrant immediately prior thereto; in each such case, the
terms of this Warrant shall be applicable to the securities or property
received upon the exercise of this Warrant after such
consummation.
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3.3
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Certificate as to
Adjustments. In each case of an adjustment in the number
of shares of Common Stock receivable on the exercise of this Warrant, the
Company at its expense shall promptly compute such adjustment in
accordance with the terms of the Warrant and prepare a certificate
executed by an officer of the Company setting forth such adjustment and
showing the facts upon which such adjustment is based. The
Company shall forthwith mail a copy of each such
certificate to each Holder. The failure to prepare or provide
such certificate shall not modify the rights of any party
hereunder.
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3.4 Notices of Record Date,
Etc. In case:
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(a)
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the
Company shall take a record of the holders of its Common Stock (or other
securities at the time receivable upon the exercise of the Warrant) for
the purpose of entitling them to receive any cash dividend (other than a
cash dividend at the same rate as the rate of the last 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 to receive any other right;
or
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(b)
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of
any event under Section 3.2 or any voluntary or involuntary dissolution,
liquidation or winding-up of the
Company,
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then, and
in each such case, the Company shall mail or cause to be mailed to each Holder a
notice specifying, as the case may be, (i) the date on which a record is to
be taken for the purpose of such dividend, distribution or right, and stating
the amount and character of such event, or (ii) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up is to take place, and the time, if any,
to be fixed, as to which the holders of record of Common Stock (or such other
securities at the time receivable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other securities) for
securities or other property deliverable upon such event. Such notice
shall be mailed at least twenty (20) days prior to the date therein specified,
and this Warrant may be exercised prior to said date during the term of the
Warrant.
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3.5
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Threshold for
Adjustments. Anything in this section to the contrary
notwithstanding, the Company shall not be required to give effect to any
adjustment until the cumulative resulting adjustment in the Exercise Price
pursuant to this Section 3 shall have required a change of the
Exercise Price by at least $.01, but when the cumulative net effect of
more than one adjustment so determined shall be to change the Exercise
Price by at least $.01, such full change in the Exercise Price shall
thereupon be given effect. No adjustment shall be made by
reason of the issuance of shares upon conversion rights, stock issuance
rights or similar rights currently outstanding or any change in the number
of treasury shares held by the
Company.
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4.
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Reservation of
Shares. The Company hereby agrees that at all times
prior to the Expiration Date, it will have authorized and will reserve and
keep available for issuance and delivery to the Holder that number of
Shares that may be required from time to time for issuance and delivery
upon the exercise of the then unexercised portion of this Warrant and all
other similar Warrants then outstanding and
unexercised.
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5.
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Representations and
Warranties of the Holder.
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(a)
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The
Holder represents and warrants that the Holder is acquiring this Warrant
and the Shares solely for the Holder’s own account for investment and not
with a view to or for sale or distribution of said Warrant or Shares or
any part thereof. The Holder also represents that the entire
legal and beneficial interests of this Warrant and Shares the Holder is
acquiring are being acquired for, and will be held for, the Holder’s
account only.
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(b)
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The
Holder understands that this Warrant and the Shares have not been
registered under the Act, or the securities laws of any applicable state,
on the basis that no distribution or public offering of the stock of the
Company is to be effected. The Holder realizes that the basis
for the exemption may not be present if, notwithstanding the Holder’s
representations, the Holder has a present intention of acquiring the
securities for a fixed or determinable period in the future, selling (in
connection with a distribution or otherwise), granting any participation
in, or otherwise distributing the securities. The Holder has no
such present intention.
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(c)
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The
Holder recognizes that this Warrant and the Shares must be held
indefinitely unless they are subsequently registered under the Act or an
exemption from such registration is available. The Holder
recognizes that the Company has no obligation to register this Warrant or
the Shares, or to comply with any exemption from such registration. This
Warrant, the Shares, and all other securities issued or issuable upon
exercise of this Warrant, may not be offered, sold or transferred, in
whole or in part, except in compliance with the Act, and except in
compliance with all applicable state securities
statutes.
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(d)
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The
Holder understands and agrees that all certificates evidencing the Shares
shall bear legends substantially in the form of the
following:
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THIS
SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), IN
RELIANCE UPON THE EXEMPTIONS FROM REGISTRATION PROVIDED IN THE ACT AND
REGULATION D UNDER THE ACT AND HAVE NOT BEEN REGISTERED UNDER ANY STATE
SECURITIES LAWS. AS SUCH, THE ACQUISITION OF THIS SECURITY WAS
NECESSARILY WITH THE INTENT OF INVESTMENT AND NOT WITH A VIEW FOR
DISTRIBUTION. THEREFORE, ANY SUBSEQUENT TRANSFER OF THIS
SECURITY OR ANY INTEREST THEREIN WILL BE UNLAWFUL UNLESS IT IS REGISTERED
UNDER THE ACT AND ANY STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM
REGISTRATION IS AVAILABLE. FURTHERMORE, IT IS UNLAWFUL TO CONSUMMATE A
SALE OR TRANSFER OF THIS SECURITY OR ANY INTEREST THEREIN, WITHOUT THE
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT THE PROPOSED TRANSFER OR
SALE DOES NOT AFFECT THE EXEMPTIONS RELIED UPON BY THE COMPANY IN
ORIGINALLY DISTRIBUTING THE SECURITY AND THAT REGISTRATION IS NOT
REQUIRED.
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6.
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Fractional
Shares. No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of all or any part of
this Warrant. With respect to any fraction of a Share of any
security called for upon any exercise of this Warrant, the Company shall
pay to the Holder an amount in money equal to that fraction multiplied by
the Fair Market Value of that Share. “Fair Market Value” shall
be the last reported sale price of the Common Stock on a publicly traded
market for the Common Stock on the last business day prior to the date of
the applicable exercise of this Warrant, or if no such sale is made on
such day, the reported closing price for such day; provided that if at the
time a publicly traded market for the Common Stock does not exist on any
national securities exchange (including the Nasdaq Stock Market), or the
OTC Bulletin Board, “Fair Market Value” shall be the fair market value of
a share determined in good faith by the
Company.
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7.
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Piggyback
Registration.
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(a)
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If
the Company at any time from and after the date of this Warrant proposes
to register under the Act (except by a Form S-4 or Form S-8 Registration
Statement or any successor forms thereto) any of its securities, it will
give written notice to the Holder of this Warrant and any shares issued or
issuable upon exercise hereof (the “Warrant Shares”) of its intention to
do so and, on the written request of the Holder hereof given within twenty
(20) days after receipt of any such notice (which request shall specify
the interest in this Warrant or the Warrant Shares intended to be sold or
disposed of by the holder hereof and describe the nature of any proposed
sale or other disposition thereof), the Company will use its best efforts
to cause all such Warrant Shares covered by the notice to be included in
such registration statement proposed to be filed by the Company; provided
that:
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(i)
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if
a greater number of Warrant Shares is offered for participation in the
proposed offering than in the reasonable opinion of the managing
underwriter of the proposed offering can be accommodated without adversely
affecting the proposed offering, then the amount of Warrant Shares
proposed to be offered by the Holder for registration, as well as the
number of securities of any other selling shareholders participating in
the registration, shall be proportionately reduced to a number deemed
satisfactory by the managing
underwriter;
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(ii)
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the
Company may, at its sole discretion and without the consent of the Holder
of the Warrant Shares, withdraw such registration statement and abandon
the proposed offering in which such holder had requested to
participate;
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(iii)
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if
the offering to which the registration statement relates is to be
distributed by or through an underwriter, the Holder of the Warrant Shares
shall agree, as a condition to the inclusion of such holder’s securities
in such registration, to sell securities held by such holder through such
underwriter on the same terms and conditions as the underwriter agrees to
sell securities on behalf of the Company and not to sell, transfer,
pledge, assign or otherwise dispose of the Warrant Shares not sold by such
holder in such offering for such period (up to 180 days after the
effective date of the registration statement) as may be required by the
underwriter; and
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(iv)
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the Company shall not be obligated to include any Warrant Shares in any such registration if the Holder is able to sell all of the Warrant Shares in a single transaction pursuant to Rule 144 under the Act (or any other similar rule or regulation) during the three-month period beginning on the date such notice is received by such holder, calculated as of the date of such receipt. |
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(b)
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Upon
the exercise of registration rights pursuant to this Section 7, the Holder
agrees to supply the Company with such information as may be required by
the Company to register or qualify the shares to be
registered.
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(c)
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With
respect to each inclusion of securities in a registration statement
pursuant to this Section 7, the Company shall bear the following fees,
costs, and expenses: all registration, filing and FINRA fees, printing
expenses, fees and disbursements of counsel and accountants for the
Company, fees and disbursements of counsel for the underwriter or
underwriters of such securities (if the Company is required to bear such
fees and disbursements), all internal expenses, and legal fees and
disbursements and other expenses of complying with state securities laws
of any jurisdictions in which the securities to be offered are to be
registered or qualified. Fees and disbursements of special
counsel and accountants for the selling Holder of Warrant Shares,
underwriting discounts and commissions, and transfer taxes for selling
holder and any other expenses relating to the sale of securities by the
selling Holder not expressly included above shall be borne by the selling
Holder.
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8.
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Call. The
Company shall have the option to "call" the exercise of the Warrant from
time to time, in accordance with and governed by the
following:
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(a)
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The
Company shall exercise the Warrant Call by giving to the Holder a notice
of call upon twenty (20) days written notice (the "Call Notice") during
the period in which the Warrant Call may be exercised. The
effective date of each Call Notice (the “Call Date”) is the date on which
notice is effective under the notice provision of Section 12 of this
Warrant.
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(b)
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The
Company's right to exercise the Warrant Call shall commence twenty (20)
trading days after the actual effective date of a Registration Statement
and end twenty (20) days prior to the Expiration
Date.
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(c)
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The
number of shares of Common Stock to be issued upon exercise of the
Warrants which are subject to a Call Notice must be registered in a
Registration Statement effective from thirty (30) business days prior to
the Call Date and through the date such Common Stock is actually delivered
to the Warrant Holder (the “Delivery
Date”).
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(d)
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A
Call Notice may be given by the Company only within ten (10) days after
the Common Stock has had a closing price as reported for the Principal
Market (as defined below) of not less than $6.00 per share for twenty out
of thirty consecutive trading days (the “Lookback Period”) with trading
volume in excess of 25,000 shares per day on such twenty
days.
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(e)
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For
purposes hereof, the Principal Market for the Company shall be as
follows: If the Company's Common Stock is traded on an exchange
or is quoted on Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq
Capital Market then such exchange shall be the Principal
Market. If the Company's Common Stock is not traded on an
exchange, but is traded in the over-the-counter market, then that shall be
the Principal Market.
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(f)
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The
Common Stock must be listed on the Principal Market for the Lookback
Period and through the Delivery
Date.
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(g)
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The
Holder shall exercise his Warrant rights and purchase the called Warrant
Shares and pay for same within twenty (20) days after the Call
Date. If the Holder fails to timely pay the amount required by
the Warrant Call, the Company’s sole remedy shall be to cancel a
corresponding amount of the Holder’s
Warrants.
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9.
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Rights of the
Holder. The Holder shall not be entitled to any rights
as a shareholder of the Company by reason of this Warrant, either at law
or equity. The Company covenants, however, that for so long as
this Warrant is at least partially unexercised, it will furnish to the
Holder of this Warrant at the Holder’s request copies of all reports and
communications furnished to the shareholders of the
Company.
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10.
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Taxes Due Upon
Exercise, Etc. The Company shall pay any and all issue
or transfer taxes, including, but not limited to, all federal or state
taxes, that may be payable with respect to the transfer of this Warrant or
the issue or delivery of Shares upon the exercise of this Warrant. The
Holder shall be responsible, and shall pay, any income or other taxes that
may be due upon sale or other disposition of this Warrant or the
Shares.
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11.
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Shares to be Fully
Paid. The Company covenants that all Shares that may be
issued and delivered to the Holder of this Warrant upon the exercise of
this Warrant will be, upon such delivery, validly and duly issued, fully
paid and non-assessable.
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12.
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Notices. All
notices, certificates, requests, or other similar items provided for in
this Warrant shall be in writing and shall be personally delivered or
deposited in the United States mail, postage prepaid, addressed to the
respective party as indicated in the portions of this Warrant preceding
Section 1. All notices shall be deemed to be delivered
upon personal delivery or upon the expiration of three (3) business days
following deposit in the United States mail, postage
prepaid. The addresses of the parties may be changed, and
addresses of other Holders and holders of Shares may be specified, by
written notice delivered pursuant to this Section 12. The
Company's principal office shall be deemed to be the address provided
pursuant to this Section for the delivery of notices to the
Company.
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13.
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Applicable
Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of Colorado, and courts located in
Colorado shall have exclusive jurisdiction over all disputes arising
hereunder except as provided in Section 12
hereof.
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14.
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Dispute
Resolution. The parties shall attempt in good faith to
resolve any controversy or claim arising out of or relating to this
Warrant, or the breach, termination, or validity thereof (a “Dispute”)
promptly by negotiation between the parties. If a Dispute has
not been resolved within thirty (30) days by negotiation, the parties
shall attempt to mediate the Dispute through the selection of a mutually
agreeable mediator who shall conduct such mediation in
confidence. If a Dispute is not resolved by mediation within
sixty (60) days of submission to the mediator, then the Dispute shall be
settled by arbitration in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, and governed by the United States
Arbitration Act, 9 U.S.C. §§ 1-16, except as otherwise provided
herein. Judgment upon the award rendered by the arbitrator may
be entered by any court having jurisdiction thereof. The place
of any dispute resolution hereunder shall be Denver,
Colorado. Each party shall be responsible for its own attorney
fees incurred during any phase of dispute resolution. The
arbitrator shall apply the law to the dispute in the same manner as a
judge as though the dispute was before a court of law of the State of
Colorado. The arbitrator shall have the authority to award any
remedy or relief that a court of the State of Colorado could order or
grant, including, without limitation, specific performance of any
obligation created under the Agreement, the issuance of an injunction, or
the imposition of sanctions for abuse or frustration of the arbitration
process. Notwithstanding the foregoing, the arbitrator shall
not have authority to award punitive damages. The parties shall
take all reasonable steps necessary to conduct a hearing no later than
forty-five (45) days after submission of the matter to
arbitration. The arbitrator shall render his decision within
fifteen (15) days after the close of the arbitration
hearing. The arbitration award shall be in writing and shall
specify the factual and legal bases for the
award.
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15.
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Market Standoff
Agreement. The Holder shall not sell, dispose of, transfer, make
any short sale of, grant any option for the purchase of, or enter into any
hedging or similar transaction with the same economic effect as a sale,
any Common Stock (or other securities) of the Company held by the Holder,
for a period of time specified by the managing underwriter(s) or placement
agent(s), as applicable (not to exceed one hundred eighty (180) days)
following the effective date of a primary underwritten public offering by
the Company of any Common Stock (or other securities) or private placement
by the Company of any Common Stock (or other
securities). Holder agrees to execute and deliver such other
agreements as may be reasonably requested by the Company and/or the
managing underwriter(s) or placement agent(s) which are consistent with
the foregoing or which are necessary to give further effect
thereto. In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect to such Common
Stock (or other securities) until the end of such period. The
underwriters or placement agents of the Company’s stock are intended third
party beneficiaries of this Section 15 and shall have the right, power and
authority to enforce the provisions hereof as though they were a party
hereto.
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Miscellaneous
Provisions.
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(a)
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Subject
to the terms and conditions contained herein, this Warrant shall be
binding on the Company and its successors and shall be binding on and
inure to the benefit of the original Holder, his successors and assigns
and all holders of Shares and the exercise of this Warrant in full shall
not terminate the provisions of this Warrant as it relates to holders of
Shares received upon exercise of this
Warrant.
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(b)
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This
Warrant cannot be changed or terminated or any performance or condition
waived in whole or in part except by an agreement in writing signed by the
party against whom enforcement of the change, termination or waiver is
sought.
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(c)
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If
any provision of this Warrant shall be held to be invalid, illegal or
unenforceable, such provision shall be severed, enforced to the extent
possible, or modified in such a way as to make it enforceable, and the
invalidity, illegality or unenforceability shall not affect the remainder
of this Warrant.
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(d)
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The
Company agrees to execute such further agreements, conveyances,
certificates and other documents as may be reasonably requested by the
Holder to effectuate the intent and provisions of this
Warrant.
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(e)
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Paragraph
headings used in this Warrant are for convenience only and shall not be
taken or construed to define or limit any of the terms or provisions of
this Warrant. Unless otherwise provided, or unless the context
shall otherwise require, the use of the singular shall include the plural
and the use of any gender shall include all
genders.
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OMNI
BIO PHARMACEUTICAL, INC.
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ATTEST:
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By:
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By:
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Robert
Ogden
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Vicki
Barone
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Secretary
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Chairperson
of the Board
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EXHIBIT
A
NOTICE
OF EXERCISE
(To be
executed by a Holder desiring to exercise the right to purchase Shares pursuant
to a Warrant.)
The undersigned Holder of a Warrant
hereby:
(a)
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irrevocably
elects to exercise the Warrant to the extent of purchasing _______________
Shares;
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(b)
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makes
payment in full of the aggregate Exercise Price for those Shares in the
amount of $___________ by
the delivery of immediately available funds in the amount of $
_____:
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(c)
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requests
that certificates evidencing the securities underlying such Shares be
issued in the name of the undersigned, or, if the name and address of some
other person is specified below, in the name of such other
person:
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(Name and address of person other than
the
undersigned
in whose name Shares are to be registered)
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(d)
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requests,
if the number of Shares purchased are not all the Shares purchasable
pursuant to the unexercised portion of the Warrant, that a new Warrant of
like tenor for the remaining Shares purchasable pursuant to the Warrant be
issued and delivered to the undersigned at the address stated
below.
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Dated:
__________________________
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Signature
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(This
signature must conform in all respects to the name of the Holder as
specified on the face of the Warrant.)
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Social
Security Number or Employer ID Number
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Printed
Name
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Address:
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EXHIBIT
B
ASSIGNMENT
FORM
FOR VALUE
RECEIVED, the undersigned, _________________________________________, hereby
sells, assigns and transfers unto:
Name:
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(Please
type or print in block letters)
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Address:
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Tax ID or SSN: | ||
the right to purchase ___________ Shares of Omni Bio Pharmaceutical, Inc. (the "Company") pursuant to the terms and conditions of the Warrant held by the undersigned. The undersigned hereby authorizes and directs the Company (i) to issue and deliver to the above-named assignee at the above address a new Warrant pursuant to which the rights to purchase being assigned may be exercised, and (ii) if there are rights to purchase Shares remaining pursuant to the undersigned's Warrant after the assignment contemplated herein, to issue and deliver to the undersigned at the address stated below a new Warrant evidencing the right to purchase the number of Shares remaining after issuance and delivery of the Warrant to the above-named assignee. Except for the number of Shares purchasable, the new Warrants to be issued and delivered by the Company are to contain the same terms and conditions as the undersigned's Warrant. To complete the assignment contemplated by this Assignment Form, the undersigned hereby irrevocably constitutes and appoints ______________________________________________________________as the undersigned's attorney-in-fact to transfer the Warrants and the rights thereunder on the books of the Company with full power of substitution for these purposes.
Dated: ____________________________
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Signature
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(This
signature must conform in all respects
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to
the name of the Holder as specified on the
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face
of the Warrant.)
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Printed
Name
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Address: | ||
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