**Exhibit 10.31**

 

**THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEENACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANYAPPLICABLE STATE SECURITIES LAWS.**

 

**WARRANTTO PURCHASE 73,684 SHARES**

**OF COMMON STOCK OF**

**HOLLIS-EDEN PHARMACEUTICALS, INC.**

**(Void afterFebruary 25, 2008)**

 

This certifies that SGCowen Securities Corporation, having an address of 1221 Avenue of the Americas, New York, New York 10020 (the “Holder”), for value received, is entitled to purchase from Hollis-Eden Pharmaceuticals, Inc., a Delaware corporation (the“Company”), having a place of business at 4435 Eastgate Mall, Suite 400, San Diego, California 92121, a maximum of 73,684 fully paid and nonassessable shares of the Company’s Common Stock (“Common Stock”) for cash at a priceof $5.99 per share (the “Stock Purchase Price”), at any time or from time to time from the period beginning on August 25, 2003 up to and including 5:00 p.m. (Pacific time) on February 25, 2008 (the “Expiration Date”), uponsurrender to the Company at its principal office (or at such other location as the Company may advise the Holder in writing) of this Warrant properly endorsed with the Notice of Exercise attached hereto as Exhibit A (the “Notice ofExercise”) duly completed and signed and, if applicable, upon payment in cash or by check of the aggregate Stock Purchase Price for the number of shares for which this Warrant is being exercised determined in accordance with the provisionshereof. The Stock Purchase Price and the number of shares purchasable hereunder are subject to adjustment as provided in Section 4 of this Warrant. 

 

This Warrant is subject to the following terms and conditions: 

 

**1.****EXERCISE; ISSUANCEOF CERTIFICATES;PAYMENTFOR SHARES.**This Warrant is exercisable at the option of the holder of record hereof, at any time or from time to time, from the period beginning on August 25, 2003 up to the Expiration Datefor all or any part of the shares of Common Stock subject to this Warrant. The Company agrees that the shares of Common Stock purchased under this Warrant shall be and are deemed to be issued to the Holder hereof as the record owner of such sharesas of the close of business on the date on which this Warrant shall have been surrendered, properly endorsed, together with a completed Notice of Exercise, and payment made for such shares. Certificates for the shares of Common Stock so purchased,together with any other securities or property to which the Holder hereof is entitled upon such exercise, shall be delivered to the Holder hereof by the Company at the Company’s expense within a reasonable time after the rights represented bythis Warrant have been so exercised. In case of a purchase of less than all the shares which may be purchased under this Warrant, the Company shall cancel this Warrant and execute and deliver a new Warrant or Warrants of like tenor for the balanceof the shares purchasable under the Warrant surrendered upon such purchase to the Holder hereof within a reasonable time. Each stock certificate so delivered shall be in such denominations of Common Stock as may be requested by the Holder hereof andshall be registered in the name or names as nominated by such Holder. 

 

1. 

 

**2.****NET EXERCISE.** Notwithstanding any provisions herein to the contrary, if the fair market value of one share of the Company’s common stock is greater than the Stock Purchase Price (at the date ofcalculation as set forth below), in lieu of exercising this Warrant by payment of cash, the Holder may elect to receive shares equal to the value (as determined below) of this Warrant (or the portion thereof being canceled) by surrender of thisWarrant at the principal office of the Company together with the properly endorsed Notice of Exercise in which event the Company shall issue to the Holder a number of shares of Common Stock computed using the following formula: 

 

X =
 
Y (A-B)
     
     A
   
Where
 
X =
  
the number of shares of Common Stock to be issued to the Holder
  
Y =
  
the number of shares of Common Stock purchasable under this Warrant or, if only a portion of the Warrant is beingexercised, the portion of this Warrant being canceled (at the date of such calculation)
  
A =
  
the fair market value of one share of the Company’s common stock (at the date of suchcalculation)
  
B =
  
Stock Purchase Price (as adjusted to the date of such calculation)

 

Forpurposes of the above calculation, the fair market value of one share of common stock shall be determined by the closing price of the Company’s common stock on the Nasdaq National Market (or other exchange on which the Company’s commonstock may be trading) on the business day prior to the date of the exercise of this Warrant. 

 

****To the extent this Warrant is not previously exercised, and if the fair market value of one share of Common Stock is greater than the Stock Purchase Price (as adjusted to the date of suchcalculation), this Warrant shall be deemed automatically exercised pursuant to the cashless exercise provision set forth in this Section 2 (even if not surrendered) immediately prior to its expiration. To the extent this Warrant or any portionthereof is deemed automatically exercised pursuant to this paragraph, the Company agrees to promptly notify the holder hereof of the number shares of Common Stock, if any, the holder hereof is entitled to receive by reason of such automaticexercise.****

 

**3.****SHARESTOBE FULLY PAID; RESERVATIONOF SHARES.** The Company covenants and agrees that all shares of Common Stock whichmay be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable and free from all preemptive rights of any stockholder and free of all taxes, liens andcharges with respect to the issue thereof. The Company further covenants and agrees that, during the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized and reserved, for thepurpose of issue or transfer upon exercise of the subscription rights evidenced by this Warrant, a sufficient number of shares of authorized but unissued Common Stock, or other securities and property, when and as required to provide for theexercise of the rights represented by this Warrant. The Company will take all such action as may be necessary to assure that such shares of Common Stock may be issued as provided herein without violation of any applicable law or regulation, or ofany 

 

2. 

 

requirements of any domesticsecurities exchange upon which the Common Stock may be listed. The Company will not take any action which would result in any adjustment of the Stock Purchase Price (as set forth in Section 4 hereof) if the total number of shares of Common Stockissuable after such action upon exercise of all outstanding options, warrants and convertible securities, together with all shares of Common Stock then outstanding, would exceed the total number of shares of Common Stock then authorized by theCompany’s Certificate of Incorporation.****

 

**4.****ADJUSTMENTOF STOCK PURCHASE PRICEAND NUMBEROF SHARES.** The Stock Purchase Priceand the number of shares purchasable upon the exercise of this Warrant shall be subject to adjustment from time to time upon the occurrence of certain events described in this Section 4. Upon each adjustment of the Stock Purchase Price, the Holderof this Warrant shall thereafter be entitled to purchase, at the Stock Purchase Price resulting from such adjustment, the number of shares obtained by multiplying the Stock Purchase Price in effect immediately prior to such adjustment by the numberof shares purchasable pursuant hereto immediately prior to such adjustment, and dividing the product thereof by the Stock Purchase Price resulting from such adjustment.****

 

**4.1****Subdivision or Combination of Stock.** In case the Company shall at any time subdivide itsoutstanding shares of Common Stock into a greater number of shares, the Stock Purchase Price in effect immediately prior to such subdivision shall be proportionately reduced, and conversely, in case the outstanding shares of Common Stock of theCompany shall be combined into a smaller number of shares, the Stock Purchase Price in effect immediately prior to such combination shall be proportionately increased.****

 

**4.2****Dividends in Common Stock, Other Stock, Property, Reclassification.** If at any time or fromtime to time the Holders of Common Stock (or any shares of stock or other securities at the time receivable upon the exercise of this Warrant) shall have received or become entitled to receive, without payment therefore:****

 

**(a)**Common Stock or any shares of stock or othersecurities which are at any time directly or indirectly convertible into or exchangeable for Common Stock, or any rights or options to subscribe for, purchase or otherwise acquire any of the foregoing by way of dividend or other distribution, or

 

**(b)**Common Stock or additional stock orother securities or property (including cash) by way of spinoff, split-up, reclassification, combination of shares or similar corporate rearrangement (other than shares of Common Stock issued as a stock split or adjustments in respect of which shallbe covered by the terms of Section 4.1 above), then and in each such case, the Holder hereof shall, upon the exercise of this Warrant, be entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and withoutpayment of any additional consideration therefor, the amount of stock and other securities and property (including cash in the case referred to in this clause (b)) which such Holder would hold on the date of such exercise had he been the holder ofrecord of such Common Stock as of the date on which holders of Common Stock received or became entitled to receive such shares or all other additional stock and other securities and property. 

 

3. 

 

**4.3****Reorganization, Reclassification, Consolidation, Merger or Sale.** If any recapitalization, reclassification or reorganization of the capital stock of the Company, or any consolidation or merger of the Company with another corporation, or the saleof all or substantially all of its assets or other transaction shall be effected in such a way that holders of Common Stock shall be entitled to receive stock, securities, or other assets or property (a “Transaction”), then, as a conditionof such Transaction, lawful and adequate provisions shall be made by the Company whereby the Holder hereof shall thereafter have the right to purchase and receive (in lieu of the shares of the Common Stock of the Company immediately theretoforepurchasable and receivable upon the exercise of the rights represented hereby) such shares of stock, securities or other assets or property as may be issued or payable with respect to or in exchange for a number of outstanding shares of such CommonStock equal to the number of shares of such stock immediately theretofore purchasable and receivable upon the exercise of the rights represented hereby; provided, however, that in the event the fair market value of the stock, securities or otherassets or property (determined in good faith by the Board of Directors of the Company) issuable or payable with respect to one share of the Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of therights represented hereby is in excess of the Stock Purchase Price hereof effective at the time of a merger and securities received in such reorganization, if any, are publicly traded, then this Warrant shall expire unless exercised prior to suchTransaction. In the event of any Transaction, appropriate provision shall be made by the Company with respect to the rights and interests of the Holder of this Warrant to the end that the provisions hereof (including, without limitation, provisionsfor adjustments of the Stock Purchase Price and of the number of shares purchasable and receivable upon the exercise of this Warrant) shall thereafter be applicable, in relation to any shares of stock, securities or assets thereafter deliverableupon the exercise hereof.****

 

**4.4****Certain Events.**If any change in the outstanding Common Stock of the Company or any other event occurs as to which the other provisions of this Section 4 are not strictly applicable or if strictly applicable would not fairly protect thepurchase rights of the Holder of the Warrant in accordance with such provisions, then the Board of Directors of the Company shall make an adjustment in the number and class of shares available under the Warrant, the Stock Purchase Price or theapplication of such provisions, so as to protect such purchase rights as aforesaid. The adjustment shall be such as will give the Holder of the Warrant upon exercise for the same aggregate Stock Purchase Price the total number, class and kind ofshares as he would have owned had the Warrant been exercised prior to the event and had he continued to hold such shares until after the event requiring adjustment.****

 

**4.5****Notices of Change.**

 

**(a)**Within 60 days after any adjustment in the number or class of shares subject to this Warrant andof the Stock Purchase Price, the Company shall give written notice thereof to the Holder, setting forth in reasonable detail and certifying the calculation of such adjustment. 

 

**(b)**The Company shall also give written notice to the Holder at least 10 business days prior to thedate on which a Transaction shall take place. 

 

**5.****ISSUE TAX.**The issuance of certificates for shares of Common Stock upon the exercise of the Warrant shall be made without charge to the Holder of the Warrant for any issue 

 

4. 

 

tax (other than any applicableincome taxes for which the Company may make requisite withholdings) in respect thereof; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery ofany certificate in a name other than that of the then Holder of the Warrant being exercised.****

 

**6.****CLOSINGOF BOOKS.** The Company will at no time close its transfer booksagainst the transfer of any warrant or of any shares of Common Stock issued or issuable upon the exercise of any warrant in any manner which interferes with the timely exercise of this Warrant.****

 

**7.****NO VOTINGOR DIVIDEND RIGHTS; LIMITATIONOF LIABILITY.** Nothing contained in this Warrant shall be construed as conferring upon the Holder hereof the right to vote orto consent or to receive notice as a stockholder of the Company or any other matters or any rights whatsoever as a stockholder of the Company. No dividends or interest shall be payable or accrued in respect of this Warrant or the interestrepresented hereby or the shares purchasable hereunder until, and only to the extent that, this Warrant shall have been exercised. No provisions hereof, in the absence of affirmative action by the holder to purchase shares of Common Stock, and nomere enumeration herein of the rights or privileges of the holder hereof, shall give rise to any liability of such Holder for the Stock Purchase Price or as a stockholder of the Company, whether such liability is asserted by the Company or by itscreditors. 

 

**8.****WARRANTSNON-TRANSFERABLE.**Neither this Warrant nor any of Holder’s rights hereunder are transferable, in whole or in part, to any third party, unless such transfer is made to an employee, affiliate or shareholder ofHolder with notice thereof to the Company. Any attempted assignment or transfer in violation of the foregoing will be void.****

 

**9.****RIGHTSAND OBLIGATIONS SURVIVE EXERCISEOF WARRANT.**The rights and obligations of the Company, of the holder of this Warrant and of the holder of shares of Common Stock issued upon exercise of this Warrant shall survive the exercise of thisWarrant.****

 

**10.****MODIFICATIONAND WAIVER.** This Warrant and any provision hereof may be changed, waived, discharged or terminated only by an instrument in writing signed by the party against which enforcement ofthe same is sought. 

 

**11.****REGISTRATION RIGHTS.** Holder shall be entitled to “piggy-back” registration rights on all registrations of the Company subject to the right, however, of the Company and its underwriters to reduce thenumber of shares proposed to be registered pro rata together with all other holders of registration rights in view of market conditions. All expenses of such registration shall be borne by the Company. Holder shall also be entitled to demand fromthe Company up to two registrations on Form S-3 for the resale of the shares of Common Stock underlying the Warrant; *provided, however*, that the Company shall not be obligated to effect any such registration: (i) if within thirty (30) days ofreceipt of a written request by Holder to effect such a registration, the Company gives notice to Holder of the Company’s intention to make a public offering within ninety (90) days; (ii) if the Company shall furnish to Holder a certificatesigned by the Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company and its stockholders for such Form S-3 registration tobe effected at such time, in which event the Company shall have the right to defer the filing of the Form S-3 registration 

 

5. 

 

statement for a period of notmore than ninety (90) days after receipt of the written request of Holder; *provided*, that such right to delay a request shall be exercised by the Company not more than once in any twelve (12) month period; or (iii) if the Company has affectedat least one (1) other registration statement pursuant to this Section 11 within the preceding twelve (12) month period. All expenses of the first such S-3 registration shall be borne by the Company, and all expenses of the second such S-3registration shall be borne by Holder. The registration rights of Holder provided in this Section 11 shall terminate on the date that the shares of Common Stock underlying the Warrant may be resold by Holder without registration by reason of Rule144(k) under the Securities and Exchange Act of 1933, as amended, or any other rule of similar effect. 

 

**12.****NOTICES.** Any notice, request or other document required or permitted to be given or delivered to theholder hereof or the Company shall be delivered or shall be sent by certified mail, postage prepaid, to each such holder at its address as shown on the books of the Company or to the Company at the address indicated therefor in the first paragraphof this Warrant or such other address as either may from time to time provide to the other.****

 

**13.****BINDING EFFECTON SUCCESSORS.**This Warrant shall be bindingupon any corporation succeeding the Company by merger, consolidation or acquisition of all or substantially all of the Company’s assets. All of the obligations of the Company relating to the Common Stock issuable upon the exercise of thisWarrant shall survive the exercise and termination of this Warrant.****

 

**14.****DESCRIPTIVE HEADINGSAND GOVERNING LAW.**The description headings of the several sections and paragraphs ofthis Warrant are inserted for convenience only and do not constitute a part of this Warrant. This Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State ofDelaware.****

 

**15.****LOST WARRANTS.**The Company represents and warrants to the Holder hereof that upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant and,in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation upon surrender and cancellation of such Warrant, the Company, at its expense, will makeand deliver a new Warrant, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Warrant.****

 

**16.****FRACTIONAL SHARES.** No fractional shares shall be issued upon exercise of this Warrant. TheCompany shall, in lieu of issuing any fractional share, pay the holder entitled to such fraction a sum in cash equal to such fraction multiplied by the then effective Stock Purchase Price. 

 

6. 

 

**IN WITNESS WHEREOF,**the Company has caused this Warrant to be duly executed by its officers, thereunto duly authorized this 25th day of February 2003. 

 

**HOLLIS-EDEN PHARMACEUTICALS,INC.,**

a Delaware corporation 

By:
 
/s/    Daniel D. Burgess        

Name:
 
Daniel D. Burgess

Title:
 
Chief Operating Officer and Chief Financial Officer

 

 

 

7. 

 

**EXHIBIT A**

 

**SUBSCRIPTION FORM**

 

Date:            

 

Hollis-Eden Pharmaceuticals, Inc. 

4435 Eastgate Mall, Suite400 

San Diego, CA 92121 

 

Attn: Secretary 

 

Ladies and Gentlemen: 

 
 ̈ The undersigned hereby elects to exercise the warrant issued to it by Hollis-Eden Pharmaceuticals, Inc. (the “Company”) and dated            , 2003 (the “Warrant”) and to purchase thereunder                             shares of the Common Stock of the Company (the “Shares”) at apurchase price of $             per Share or an aggregate purchase price of                         Dollars($                ) (the “Purchase Price”). 
 
 ̈ The undersigned hereby elects to convert                     percent (            %) of the value of the Warrantpursuant to the provisions of Section 2 of the Warrant. 
 

Pursuant to the terms of the Warrant the undersigned has delivered the Purchase Price herewith in full in cash or by certified check or wire transfer. 

 

Very truly yours,

Signature

Printed Name

 

 

 

8.