EXHIBIT 2.0
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY OTHER APPLICABLE UNITED STATES OR CANADIAN
SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER SECURITIES LAWS.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF MAY
BE SOLD, PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION
UNDER THE PROVISIONS OF THE SECURITIES ACT OR ANY APPLICABLE CANADIAN
LAWS.
STOCK PURCHASE WARRANT
To Purchase 109,879 Shares of Common Stock of
Nymox Pharmaceutical Corporation
THIS CERTIFIES that, for value received, Judith Fitzpatrick Davis (the
"Holder"), is entitled, upon the terms and subject to the limitations on
exercise and the conditions hereinafter set forth, at any time on or after
January 8, 2000 (the "Initial Exercise Date") and on or prior to the close of
business on January 8, 2005 (the "Termination Date") but not thereafter, to
subscribe for and purchase from Nymox Pharmaceutical Corporation, a corporation
incorporated in Canada (the "Company"), up to 109,879 shares (the "Warrant
Shares") of Common Stock, no par value, of the Company (the "Common Stock"). The
purchase price of one share of Common Stock (the "Exercise Price") under this
Warrant shall be $3.70. The Exercise Price and the number of shares for which
the Warrant is exercisable shall be subject to adjustment as provided herein. In
the event of any conflict between the terms of this Warrant and the Share
Purchase Agreement dated as of January 8, 2000 pursuant to which this Warrant
has been issued (the "Purchase Agreement"), the Purchase Agreement shall
control. Capitalized terms used and not otherwise defined herein shall have the
meanings set forth for such terms in the Purchase Agreement.
1. Title to Warrant.
Prior to the Termination Date and subject to compliance with applicable
laws, this Warrant and all rights hereunder are transferable, in whole or in
part, at the office or agency of the Company by the holder hereof in person or
by duly authorized attorney, upon surrender of this Warrant together with the
Assignment Form annexed hereto properly endorsed.
2. Authorization of Shares.
The Company covenants that all shares of Common Stock which may be
issued upon the exercise of rights represented by this Warrant will, upon
exercise of the rights represented by this Warrant, be duly authorized, validly
issued, fully paid and non-assessable and free from all taxes, liens and charges
in respect of the issue thereof (other than taxes in respect of any transfer
occurring contemporaneously with such issue).
3. Exercise of Warrant.
A. Except as provided in Section 4 herein, exercise of the
purchase rights represented by this Warrant may be made at any
time or times on or after the Initial Exercise Date but before
the close of business on the Termination Date by the surrender
of this Warrant and the Notice of Exercise Form annexed hereto
duly executed, at the office of the Company (or such other
office or agency of the Company as it may designate by notice
in writing to the registered holder hereof at the address of
such holder appearing on the books of the Company) and, upon
payment of the Exercise Price of the shares thereby purchased
by wire transfer or cashier's check drawn on a United States
or Canadian bank, the holder of this Warrant shall be entitled
to receive a certificate for the number of shares of Common
Stock so purchased. Certificates for shares purchased
hereunder shall be delivered to the holder hereof within three
(3) Trading Days after the date on which this Warrant shall
have been exercised as aforesaid. This Warrant shall be deemed
to have been exercised and such certificate or certificates
shall be deemed to have been issued, and Holder or any other
person so designated to be named therein shall be deemed to
have become a holder of record of such shares for all
purposes, as of the date the Warrant has been exercised by
payment to the Company of the Exercise Price and all taxes
required to be paid by Holder, if any, pursuant to Section 5
prior to the issuance of such shares, have been paid.
B. If this Warrant shall have been exercised in part, the Company
shall, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to Holder a
new Warrant evidencing the rights of Holder to purchase the
unpurchased shares of Common Stock called for by this Warrant,
which new Warrant shall in all other respects be identical
with this Warrant.
C. At any time commencing one year after the issuance date
hereof, then this Warrant shall also be exercisable by means
of a "cashless exercise" in which the holder shall be entitled
to receive a certificate for the number of shares equal to the
quotient obtained by dividing [(A-B) (X)] by (A), where:
A = the average of the high and low trading prices per
share of Common Stock on the Trading Day preceding
the date of such election on the Nasdaq Stock Market,
or if the Common Stock is not traded on the Nasdaq
Stock Market, then the principal market in terms of
volume, and converted into US Dollars;
B = the Exercise Price of the Warrants; and
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X = the number of shares issuable upon exercise of the
Warrants in accordance with the terms of this
Warrant.
4. No Fractional Shares or Scrip.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of this Warrant. As to any fraction of a share which
Holder would otherwise be entitled to purchase upon such exercise, the Company
shall pay a cash adjustment in respect of such final fraction in an amount equal
to the Exercise Price.
5. Charges, Taxes and Expenses.
Issuance of certificates for shares of Common Stock upon the exercise
of this Warrant shall be made without charge to the holder hereof for any issue
or transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Company, and
such certificates shall be issued in the name of the holder of this Warrant or
in such name or names as may be directed by the holder of this Warrant;
provided, however, that in the event certificates for shares of Common Stock are
to be issued in a name other than the name of the holder of this Warrant, this
Warrant when surrendered for exercise shall be accompanied by the Assignment
Form attached hereto duly executed by the holder hereof; and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it
for any transfer tax incidental thereto.
6. Closing of Books.
The Company will not close its shareholder books or records in any
manner which prevents the timely exercise of this Warrant.
7. Transfer, Division and Combination.
A. Subject to compliance with any applicable securities laws,
transfer of this Warrant and all rights hereunder, in whole or
in part, shall be registered on the books of the Company to be
maintained for such purpose, upon surrender of this Warrant at
the principal office of the Company, together with a written
assignment of this Warrant substantially in the form attached
hereto duly executed by Holder or its agent or attorney and
funds sufficient to pay any transfer taxes payable upon the
making of such transfer. Upon such surrender and, if required,
such payment, the Company shall execute and deliver a new
Warrant or Warrants in the name of the assignee or assignees
and in the denomination or denominations specified in such
instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so
assigned, and this Warrant shall promptly be canceled. A
Warrant, if properly assigned, may be exercised by a new
holder for the purchase of shares of Common Stock without
having a new Warrant issued.
B. This Warrant may be divided or combined with other Warrants
upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names
and denominations in which new Warrants are to be issued,
signed by Holder or its agent or attorney. Subject to
compliance with Section 7(A), as to any transfer which may be
involved in such division or combination, the Company shall
execute and deliver a new Warrant or Warrants in exchange for
the Warrant or Warrants to be divided or combined in
accordance with such notice.
C. The Company shall prepare, issue and deliver at its own
expense (other than transfer taxes) the new Warrant or
Warrants under this Section 7.
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D. The Company agrees to maintain, at its aforesaid office, books
for the registration and the registration of transfer of the
Warrants.
8. No Rights as Shareholder until Exercise.
This Warrant does not entitle the holder hereof to any voting rights or
other rights as a shareholder of the Company prior to the exercise hereof. Upon
the surrender of this Warrant and the payment of the aggregate Exercise Price,
the Warrant Shares so purchased shall be and be deemed to be issued to such
holder as the record owner of such shares as of the close of business on the
later of the date of such surrender or payment.
9. Loss, Theft, Destruction or Mutilation of Warrant.
The Company covenants that upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant certificate or any stock certificate relating to the Warrant
Shares, and in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it (which shall not include the posting of any bond),
and upon surrender and cancellation of such Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate
of like tenor and dated as of such cancellation, in lieu of such Warrant or
stock certificate.
10. Saturdays, Sundays, Holidays, 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, Sunday
or a legal holiday, 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. Adjustments of Exercise Price and Number of Warrant Shares.
A. Stock Splits, etc.
The number and kind of securities purchasable upon the
exercise of this Warrant and the Exercise Price shall be
subject to adjustment from time to time upon the happening of
any of the following. In case the Company shall
(i) pay a dividend in shares of Common Stock or make
a distribution in shares of Common Stock to holders
of its outstanding Common Stock,
(ii) subdivide its outstanding shares of Common Stock
into a greater number of shares of Common Stock,
(iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock or
(iv) issue any shares of its capital stock in a
reclassification of the Common Stock,
then the number of Warrant Shares purchasable upon exercise of
this Warrant immediately prior thereto shall be adjusted so
that the holder of this Warrant shall be entitled to receive
the kind and number of Warrant Shares or other securities of
the Company which he would have owned or have been entitled to
receive had such Warrant been exercised in advance thereof.
Upon each such adjustment of the kind and number of Warrant
Shares or other securities of the Company which are
purchasable hereunder, the holder of this Warrant shall
thereafter be entitled to purchase the number of Warrant
Shares or other securities resulting from such adjustment at
an Exercise Price per Warrant Share or other security obtained
by multiplying the Exercise Price in effect immediately prior
to such adjustment by the number of Warrant Shares purchasable
pursuant hereto immediately prior to such adjustment and
dividing by the number of Warrant Shares or other securities
of the Company resulting from such adjustment.
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An adjustment made pursuant to this paragraph shall become
effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
B. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets.
In case the Company shall reorganize its capital, reclassify
its capital stock, consolidate or merge with or into another
corporation (where the Company is not the surviving
corporation or where there is a change in or distribution with
respect to the Common Stock of the Company), or sell, transfer
or otherwise dispose of all or substantially all its property,
assets or business to another corporation and, pursuant to the
terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, shares of common stock
of the successor or acquiring corporation, or any cash, shares
of stock or other securities or property of any nature
whatsoever (including warrants or other subscription or
purchase rights) in addition to or in lieu of common stock of
the successor or acquiring corporation ("Other Property"), are
to be received by or distributed to the holders of Common
Stock of the Company, then Holder shall have the right
thereafter to receive, upon exercise of this Warrant, the
number of shares of common stock of the successor or acquiring
corporation or of the Company, if it is the surviving
corporation, and Other Property receivable upon or as a result
of such reorganization, reclassification, merger,
consolidation or disposition of assets by a holder of the
number of shares of Common Stock for which this Warrant is
exercisable immediately prior to such event. In case of any
such reorganization, reclassification, merger, consolidation
or disposition of assets, the successor or acquiring
corporation (if other than the Company) shall expressly assume
the due and punctual observance and performance of each and
every covenant and condition of this Warrant to be performed
and observed by the Company and all the obligations and
liabilities hereunder, subject to such modifications as may be
deemed appropriate (as determined in good faith by resolution
of the Board of Directors of the Company) in order to provide
for adjustments of shares of Common Stock for which this
Warrant is exercisable which shall be as nearly equivalent as
practicable to the adjustments provided for in this Section
11. For purposes of this Section 11, "common stock of the
successor or acquiring corporation" shall include stock of
such corporation of any class which is not preferred as to
dividends or assets over any other class of stock of such
corporation and which is not subject to redemption and shall
also include any evidences of indebtedness, shares of stock or
other securities which are convertible into or exchangeable
for any such stock, either immediately or upon the arrival of
a specified date or the happening of a specified event and any
warrants or other rights to subscribe for or purchase any such
stock. The foregoing provisions of this Section 11 shall
similarly apply to successive reorganizations,
reclassifications, mergers, consolidations or disposition of
assets.
12. Voluntary Adjustment by the Company.
The Company may at any time during the term of this Warrant, reduce the
then current Exercise Price to any amount and for any period of time deemed
appropriate by the Board of Directors of the Company.
13. Notice of Adjustment.
Whenever the number of Warrant Shares or number or kind of securities
or other property purchasable upon the exercise of this Warrant or the Exercise
Price is adjusted, as herein provided, the Company shall promptly mail by
registered or certified mail, return receipt requested, to the holder of this
Warrant notice of such adjustment or adjustments setting forth the number of
Warrant Shares (and other securities or property) purchasable upon the exercise
of this Warrant and the Exercise Price of such Warrant Shares (and other
securities or property) after such adjustment, setting forth a brief statement
of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made. Such notice, in the absence of manifest error,
shall be conclusive evidence of the correctness of such adjustment.
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14. Notice of Corporate Action.
If at any time:
(a) the Company shall take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend or other
distribution, or any right to subscribe for or purchase any evidences
of its indebtedness, any shares of stock of any class or any other
securities or property, or to receive any other right, or
(b) there shall be any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
Company or any consolidation or merger of the Company with, or any
sale, transfer or other disposition of all or substantially all the
property, assets or business of the Company to, another corporation or,
(c) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of such cases, the Company shall give to Holder
(i) at least 30 days' prior written notice of the date on which a
record date shall be selected for such dividend, distribution or right
or for determining rights to vote in respect of any such
reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, liquidation or winding up, and
(ii) in the case of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or
winding up, at least 30 days' prior written notice of the date when the
same shall take place.
Such notice in accordance with the foregoing clause also shall specify
(i) the date on which any such record is to be taken for the purpose of
such dividend, distribution or right, the date on which the holders of
Common Stock shall be entitled to any such dividend, distribution or
right, and the amount and character thereof, and
(ii) the date on which any such reorganization, reclassification,
merger, consolidation, sale, transfer, disposition, dissolution,
liquidation or winding up is to take place
and the time, if any such time is to be fixed, as of which the holders of Common
Stock shall be entitled to exchange their shares of Common Stock for securities
or other property deliverable upon such disposition, dissolution, liquidation or
winding up. Each such written notice shall be sufficiently given if addressed to
Holder at the last address of Holder appearing on the books of the Company and
delivered in accordance with Section 16(D).
15. Authorized Shares.
The Company covenants that during the period the Warrant is
outstanding, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares
upon the exercise of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full authority to
its officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for the Warrant Shares upon the
exercise of the purchase rights under this Warrant. The Company will take all
such reasonable action as may be necessary to assure that such Warrant Shares
may be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of the Principal Market upon which the Common
Stock may be listed.
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The Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such actions as may be necessary or appropriate to protect the rights of Holder
against impairment. Without limiting the generality of the foregoing, the
Company will
(a) not increase the par value of any shares of Common Stock receivable
upon the exercise of this Warrant above the amount payable therefor
upon such exercise immediately prior to such increase in par value,
(b) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant,
and
(c) use its best efforts to obtain all such authorizations, exemptions
or consents from any public regulatory body having jurisdiction thereof
as may be necessary to enable the Company to perform its obligations
under this Warrant.
Before taking any action which would result in an adjustment in the
number of shares of Common Stock for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
16. Miscellaneous.
A. Jurisdiction.
This Warrant shall be binding upon any successors or assigns of the
Company. This Warrant shall constitute a contract under the laws of New
Jersey, without regard to its conflict of law, principles or rules, and
be subject to arbitration pursuant to the terms set forth in the
Purchase Agreement.
B. Restrictions.
The holder hereof acknowledges that the Warrant Shares acquired upon
the exercise of this Warrant, if not registered, will have restrictions
upon resale imposed by U.S. and Canadian state, federal and provincial
securities laws.
C. Nonwaiver and Expenses.
No course of dealing or any delay or failure to exercise any right
hereunder on the part of Holder shall operate as a waiver of such right
or otherwise prejudice Holder's rights, powers or remedies,
notwithstanding all rights hereunder terminate on the Termination Date.
If the Company fails to comply with any provision of this Warrant, the
Company shall pay to Holder such amounts as shall be sufficient to
cover any costs and expenses including, but not limited to, reasonable
attorneys' fees, including those of appellate proceedings, incurred by
Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder.
D. Notices.
Any notice, request or other document required or permitted to be given
or delivered to the holder hereof by the Company shall be delivered in
accordance with the notice provisions of the Purchase Agreement.
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E. Limitation of Liability.
No provision hereof, in the absence of affirmative action by Holder to
purchase shares of Common Stock, and no enumeration herein of the
rights or privileges of Holder hereof, shall give rise to any liability
of Holder for the purchase price of any Common Stock or as a
stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
F. Remedies.
Holder, in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that
monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant
and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
G. Successors and Assigns.
Subject to applicable securities laws, this Warrant and the rights and
obligations evidenced hereby shall inure to the benefit of and be
binding upon the successors of the Company and the successors and
permitted assigns of Holder. The provisions of this Warrant are
intended to be for the benefit of all Holders from time to time of this
Warrant and shall be enforceable by any such Holder or holder of
Warrant Shares.
H. Indemnification.
The Company agrees to indemnify and hold harmless Holder from and
against any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, attorneys' fees, expenses and
disbursements of any kind which may be imposed upon, incurred by or
asserted against Holder in any manner relating to or arising out of any
failure by the Company to perform or observe in any material respect
any of its covenants, agreements, undertakings or obligations set forth
in this Warrant; provided, however, that the Company will not be liable
hereunder to the extent that any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs,
attorneys' fees, expenses or disbursements are found in a final
non-appealable judgment by a court to have resulted from Holder's
negligence, bad faith or willful misconduct in its capacity as a
stockholder or warrantholder of the Company.
I. Amendment.
This Warrant may be modified or amended or the provisions hereof waived
with the written consent of the Company and the Holder.
J. Severability.
Wherever possible, each provision of this Warrant shall be interpreted
in such manner as to be effective and valid under applicable law, but
if any provision of this Warrant shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Warrant.
K. Headings.
The headings used in this Warrant are for the convenience of reference
only and shall not, for any purpose, be deemed a part of this Warrant.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its
officer thereunto duly authorized.
Dated: January 8, 2000
Nymox Pharmaceutical Corporation
By: /s/ Dr. Paul Averback
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Dr. Paul Averback, President
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NOTICE OF EXERCISE
To: Nymox Pharmaceutical Corporation
(1) The undersigned hereby elects to purchase ________________ shares
of Common Stock (the "Common Stock"), of Nymox Pharmaceutical Corporation
pursuant to the terms of the attached Warrant, and tenders herewith payment of
the exercise price in full, together with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
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(Name)
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(Address)
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Dated: _______________, ____
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Signature
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ASSIGNMENT FORM
(To assign the foregoing warrant, execute this form and supply required
information. Do not use this form to exercise the warrant.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to:
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whose address is:
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Dated: __________, ______
Holder's Signature:
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Holder's Address:
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Signature Guaranteed:
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NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatsoever, and must be guaranteed by a bank or trust company. Officers
of corporations and those acting in an fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.
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