Exhibit
4.6
Warrant No.
___ [Date]
THIS WARRANT
AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR UNDER THE PROVISIONS OF ANY
APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND ANY
OF SUCH SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED,
HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION UNDER SAID ACT AND ALL OTHER APPLICABLE SECURITIES
LAWS UNLESS AN EXEMPTION FROM REGISTRATION IS
AVAILABLE.
WARRANT TO PURCHASE SHARES
OF
COMMON STOCK OF OMNIMMUNE
CORP.
1.
Grant of Warrant. Omnimmune Corp., a Texas
corporation (the “Company”), hereby agrees that Francis
E. McDaniel, a resident of the State of Georgia (the
“Holder”), in consideration for his having extended
Company substantial sums of credit, is entitled, subject to the
provisions of this Warrant, to purchase from the Company, up to
[_____________] ([_____]) shares of fully paid and non-assessable
shares of Common Stock (the “Warrant Stock”) at a price
as provided in Section 4 below (the “Exercise Price”).
The term “Holder” as used herein shall include any
transferee to whom this Warrant has been transferred in accordance
with this Warrant.
The term
“Common Stock” means the Common Stock, $0.01 value per
share, of the Company as constituted on the date hereof, together
with any other equity securities that may be issued by the Company
in substitution therefor. The number of shares of Common
Stock to be received upon the exercise of this Warrant may be
adjusted from time to time as hereinafter set forth. The
term “Company” means and includes the Company as well
as any successor corporation resulting from the merger or
consolidation of such corporation with another
corporation.
2.
Exercise of Warrant. This Warrant may be
exercised, as to the whole or any lesser number of whole shares of
Warrant Stock, at any time during the period commencing on the
earlier of (i) six (6) months after the date on which the Company
or any successor thereto becomes subject to the reporting
requirements of Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, or (ii) two (2) years from the
date of issuance, and expiring at 5:00 p.m., Houston, Texas time,
upon and coincident with the tenth (10 th ) anniversary
of the date on which the Warrant becomes exercisable (such date
referred to herein as the “Expiration Date”).
This Warrant shall expire if not properly exercised
in full by the Expiration Date.
The Holder may
exercise this Warrant by presentation and surrender of this Warrant
to the Company prior to the Expiration Date at its principal office
in Houston, Texas, or at the office of its stock transfer agent, if
any, with the Notice of Exercise attached hereto duly executed and
accompanied by payment (either in cash or by certified or official
bank check, payable to the order of the Company) of the aggregate
Exercise Price for the number of shares of Warrant Stock specified
in such form.
In lieu of the
payment of the Exercise Price, Holder may require the Company to
convert this Warrant, in whole or in part, into shares of Common
Stock as provided herein (“cashless
exercise”). In order to require the cashless
exercise of this Warrant, the Holder shall surrender to the Company
this Warrant with the Notice of Exercise at the end hereof duly
completed and executed. Upon such cashless exercise, the
Company shall deliver to Holder (without payment by Holder of any
of the Exercise Price) that number of shares of Common Stock equal
to the quotient obtained by dividing (x) the value of this Warrant
(or portion thereof if being exercised in part) at the time of the
cashless exercise (determined by subtracting the aggregate Exercise
Price of the shares of Warrant Stock as to which the Warrant is
being exercised in effect immediately prior to the cashless
exercise from the aggregate Current Market Price (as defined below)
of the shares of Warrant Stock as to which the Warrant is being
exercised immediately prior to the cashless exercise) by (y) the
Current Market Price of one share of Common Stock immediately prior
to the cashless exercise.
For the
purposes of any computation hereunder, the term “Current
Market Price” per share of Common Stock on any date shall be
deemed to be the average of the daily closing prices for the five
consecutive trading days immediately preceding the date in
question. The closing price for each day shall be the
last reported sales price or, in case no such reported sale takes
place on such day, the closing bid price, in either case on the
principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if the Common Stock is not listed
or admitted to trading on any national securities exchange, the
highest reported bid price for the Common Stock as furnished by the
National Association of Securities Dealers, Inc. through Nasdaq or
a similar organization if Nasdaq is no longer reporting such
information. If on any such date the Common Stock is not
listed or admitted to trading on any national securities exchange
and is not quoted by Nasdaq or any similar organization, the fair
value of a share of Common Stock on such date, as determined in
good faith by the board of directors of the Company, whose
determination shall be conclusive absent manifest error, shall be
used.
Upon receipt by
the Company of this Warrant, together with payment in the amount of
the Exercise Price or a notice of cashless exercise as set forth
above, at its principal office in Houston, Texas, or by the stock
transfer agent of the Company at such agent’s office, in
proper form for exercise, the Holder shall be deemed to be the
holder of record of the shares of Common Stock issuable upon such
exercise, notwithstanding that the stock transfer books of the
Company shall then be closed or that certificates representing such
shares of Common Stock shall not then be actually delivered to the
Holder. As soon as practicable after each such exercise
of this Warrant, the Company shall issue and deliver to the Holder
a certificate or certificates for the Warrant Stock issuable upon
such exercise, registered in the name of the Holder. If
this Warrant should be 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 balance of the Warrant Stock subject to purchase
hereunder.
3.
Transfer of Warrant. Any Warrants issued upon
the transfer or exercise in part of this Warrant shall be numbered
and shall be registered in a warrant register (the “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. This Warrant shall be transferable on the books
of the Company only upon delivery hereof with the Form of
Assignment at the attached duly completed and executed by the
Holder or by his or its 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 transfer,
the Company shall deliver a new Warrant to the person entitled
thereto. This Warrant may be exchanged, at the option of
the Holder hereof, 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 shares of Warrant
Stock, upon surrender to the Company or its duly authorized agent.
Notwithstanding the foregoing, the Company shall have no obligation
to cause this Warrant to be transferred on its books to any person,
or Warrant Stock to be issued, if, in the opinion of counsel to the
Company, such transfer or issuance does not comply with the
provisions of the Act and the rules and regulations thereunder, and
any applicable state securities laws (“Blue Sky
Laws”).
4.
Exercise Price. Subject to adjustment as set
forth in Section 6 hereof, the exercise price per share of Warrant
Stock (the “Exercise Price”) shall be
[_________].
5.
Reservation of Shares. The Company will at all
times reserve for issuance and delivery all shares of Common Stock
issuable upon exercise of this Warrant. All such shares
shall be duly authorized and, if issued in compliance with the
terms of this Agreement, shall be validly issued, fully paid and
non-assessable. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of
this Warrant. In lieu of any fractional shares or scrip,
the Company shall pay the Holder an amount
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