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Exhibit
10.200
THE WARRANT REPRESENTED BY
THIS CERTIFICATE AND THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), OR ANY STATE SECURITIES LAWS AND NEITHER
SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED UNLESS (1) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2) THE
COMPANY RECEIVES AN OPINION OF COUNSEL TO THE HOLDER OF SUCH
SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY
TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED,
ASSIGNED OR TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR APPLICABLE STATE
SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT
IS
RESTRICTED AS DESCRIBED
HEREIN.
BIOVEST INTERNATIONAL,
INC.
Warrant No. W-4108
Warrant for the Purchase of
up to Nine Hundred Nine Thousand Ninety Shares
of Common Stock, par value $
0.01 per share
THIS WARRANT
CERTIFIES that, for value received, Ronald E. Osman (including any
transferee, the “Holder”), is entitled to subscribe for
and purchase from BIOVEST INTERNATIONAL, INC., a Delaware
corporation (the “Company”), upon the terms and
conditions set forth herein, up to an aggregate of Nine Hundred
Nine Thousand Ninety Shares (909,090) Shares of Common Stock,
par value $ 0.01 per share (“Common Stock”), at a price
(the “Exercise Price”) equal to $1.10 per share. All
warrants are fully vested on the date hereof.
All rights to
purchase shares pursuant to this Warrant must be exercised before
5:00 P.M. on September 10, 2014, New York time (the
“Exercise Period”). As used herein the term “this
Warrant” shall mean and include this Warrant and any Warrant
or Warrants hereafter issued as a consequence of the exercise or
transfer of this Warrant in whole or in part.
The number of
shares of Common Stock issuable upon exercise of the Warrants
(the “Warrant Shares”) and the Exercise Price may
be adjusted from time to time as hereinafter set forth.
This Warrant may be
exercised during the Exercise Period, as to the whole or any lesser
number of whole Warrant Shares, by the surrender of this Warrant
(with the “Election to Exercise” attached hereto, duly
executed) to the Company at its office at 324 Hyde Park
Avenue, Suite 350, Tampa FL 33606 or at such other place as is
designated in writing by the Company, together with cash or a
certified or bank cashiers check payable to the order of the
Company in an amount equal to the Exercise Price multiplied by the
number of Warrant Shares for which this Warrant is being exercised.
Each Warrant not exercised prior to the expiration of the Exercise
Period shall become null and void and all rights thereunder shall
cease as of such time.
Notwithstanding any
provisions herein to the contrary, if the Fair Market Value of one
share of Common Stock is greater than the Exercise Price (at the
date of calculation as set forth below), in lieu of exercising this
Warrant for cash, the Holder may elect to receive shares equal to
the value (as determined below) of this Warrant (or the portion
thereof being exercised) by surrender of this Warrant at the
principal office of the Company together with the properly endorsed
Exercise Notice in which event the Company shall issue to the
Holder a number of shares of Common Stock computed using the
following formula:
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X=
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Y(A-B)
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A
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Where X =
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the number
of shares of Common Stock to be issued to the Holder
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Y =
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the number
of shares of Common Stock purchasable under this Warrant or, if
only a portion of this Warrant is being exercised, the portion of
this Warrant being exercised (at the date of such
calculation)
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A =
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the Fair
Market Value of one share of the Company’s Common Stock (at
the date of such calculation)
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B =
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the
Exercise Price per share (as adjusted to the date of such
calculation)
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The Holder shall be
deemed to be the holder of record of the Warrant Shares as soon as
the Company receives the Warrant, the “Election to
Exercise” and the aggregate Exercise Price for the Warrant
Shares in accordance with Section 1; provided, however, that
if the date of such receipt is a date upon which the transfer books
of the Company are closed, the Holder shall be deemed to be the
record holder on the next succeeding business day on which such
books are open. As soon as practicable after each such exercise of
this Warrant, the Company shall issue and cause to be delivered to
the Holder a certificate or certificates for the Warrant Shares
issuable upon such exercise, registered in the name of the Holder
or its designee. If this Warrant is exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the right of the
Holder to purchase the remaining unexercised balance of the Warrant
Shares (or portions thereof) subject to purchase
hereunder.
2
Any Warrants issued
upon the transfer or exercise in part of this Warrant shall be
numbered and shall be registered in a Warrant Register as they are
issued. The Company shall be entitled to treat the registered
holder of any Warrant on the Warrant Register as the owner in fact
thereof for all purposes and shall not be bound to recognize any
equitable or other claim to or interest in such warrant on the part
of any other person, and shall not be liable for any registration
or transfer of Warrants which are registered or to be registered in
the name of a fiduciary or the nominee of a fiduciary unless made
with the actual knowledge that a fiduciary or nominee is committing
a breach of trust in requesting such registration or transfer, or
with the knowledge of such facts that its participation therein
amounts to bad faith. This Warrant shall be transferable only on
the books of the Company upon delivery thereof duly endorsed by the
Holder or by his duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment, or
authority to transfer. In all cases of transfer by an attorney,
executor, administrator, guardian, or other legal representative,
duly authenticated evidence of his or its authority shall be
produced. Upon any registration of the transfer of this Warrant,
the Company shall cause to be delivered a new Warrant or Warrants
to the person entitled thereto. This Warrant may be exchanged, at
the option of the Holder thereof, for another Warrant, or other
Warrants of different denominations, of like tenor and representing
in the aggregate the right to purchase a like number of Warrant
Shares (or portions thereof), upon surrender to the Company or its
duly authorized agent. Notwithstanding the foregoing, the Company
shall have no obligation to cause Warrants to be transferred on its
books to any person if, in the opinion of counsel to the Company,
such transfer does not comply with the provisions of the Securities
Act of 1933, as amended (the “Act”), and the rules and
regulations thereunder.
The Holder
acknowledges that he has been advised by the Company that neither
this Warrant nor the Warrant Shares have been registered under the
Act, that this Warrant is being or has been issued and the Warrant
Shares may be issued on the basis of the statutory exemption
provided by Section 4(2) of the Act or Regulation D
promulgated thereunder, or both, relating to transactions by an
issuer not involving any public offering, and that the
Company’s reliance thereon is based in part upon the
representations to the Company made by the original Holder. The
Holder acknowledges that he is familiar with the nature of the
limitations imposed by the Act and the rules and regulations
thereunder on the transfer of securities. In particular, the Holder
agrees that no sale, assignment or transfer of this Warrant or the
Warrant Shares issuable upon exercise hereof shall be valid or
effective, and the Company shall not be required to give any effect
to any such sale, assignment or transfer, unless (i) the sale,
assignment or transfer of this Warrant or such Warrant Shares is
registered under the Act, it being understood that n
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