NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE...
Exhibit
10.7
NEITHER
THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT")
OR ANY STATE SECURITIES LAWS IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT, AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT
AND UNDER APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE
SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES
LAWS. THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
SECURED BY SUCH SECURITIES. THE COMPANY MAY REQUIRE AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT ANY PROPOSED
OFFER, SALE, TRANSFER OR OTHER DISPOSITION IS IN COMPLIANCE WITH THIS WARRANT
AND ANY APPLICABLE STATE SECURITIES LAWS.
ANY
TRANSFEREE OF THIS WARRANT SHOULD CAREFULLY REVIEW THE TERMS OF THE WARRANT,
INCLUDING SECTION 4(b) HEREOF. THE NUMBER OF COMMON SHARES
UNDERLYING THIS WARRANT MAY BE LESS THAN THE NUMBER OF COMMON SHARES STATED
ON
THE FACE HEREOF PURSUANT TO SECTION 4 HEREOF.
WARRANT
|
Warrant
No. A-2
|
Dated: December
24, 2007
|
REXAHN
PHARMACEUTICALS, INC., a Delaware corporation (the “Company”), hereby
certifies that, for value received, Rexgene Biotech Co., Ltd. or its registered
assigns (the “Holder”), is entitled to purchase from the Company up to a
total of 142,857 shares of the common stock, $0.0001 par value per share
(the
“Common Stock”), of the Company (each such share, a “Warrant
Share” and all such shares, the “Warrant Shares”) at an exercise
price equal to $1.80 per share (as adjusted from time to time as provided
in
Section 9, the “Exercise Price”), at any time and from time
to time from and after the date hereof and through and including the date
that
is three years from the date of issuance hereof (the “Expiration Date”,
as adjusted pursuant to Section 4(a)), and subject to the following
terms and conditions. This warrant (this “Warrant”) is issued
pursuant to that certain Securities Purchase Agreement, dated as of November
20,
2007, by and between the Company and Rexgene Biotech Co., Ltd. (the “Purchase
Agreement”).
1. Definitions. In
addition to the terms defined elsewhere in this Warrant, capitalized terms
that
are not otherwise defined herein have the meanings given to such terms in
the
Purchase Agreement. As used herein, the term “Closing Price”
means, as of any date, the closing price of the Common Stock as reported
on the
primary Eligible Market for such date.
2. Registration
of Warrant. The Company shall register this Warrant, upon records
to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to
time. The Company may deem and treat the registered Holder of this
Warrant as the absolute owner hereof for the purpose of any exercise hereof
or
any distribution to the Holder, and for all other purposes, absent actual
notice
to the contrary.
3. Registration
of Transfers. The Company shall register the transfer of any
portion of this Warrant in the Warrant Register, upon surrender of this Warrant,
with the Form of Assignment attached hereto on Annex B duly
completed and signed, to the Transfer Agent or to the Company at its address
specified herein. Upon any such registration or transfer, a new
warrant to purchase Common Stock, in substantially the form of this Warrant
(any
such new warrant, a “New Warrant”), evidencing the portion of this
Warrant so transferred shall be issued to the transferee and a New Warrant
evidencing the remaining portion of this Warrant not so transferred, if any,
shall be issued to the transferring Holder. The acceptance of the New
Warrant by the transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a holder of a
Warrant.
4. Exercise
and Duration of Warrant.
a) This
Warrant shall be exercisable by the registered Holder at any time and from
time
to time on or after the date hereof to and including the Expiration
Date. At 18:30 (New York City time) on the Expiration Date, the
portion of this Warrant not exercised prior thereto shall be and become void
and
of no value; provided that, if the average of the Closing Prices for
the five Trading Days immediately prior to (but not including) the Expiration
Date exceeds the Exercise Price on the Expiration Date, then this Warrant
shall
be deemed to have been exercised in full (to the extent not previously
exercised) on a “cashless exercise” basis at 18:30 (New York City time) on the
Expiration Date if a “cashless exercise” may occur at such time pursuant to
Section 10 below. Notwithstanding anything to the
contrary herein, the Expiration Date shall be extended for each day following
the Effective Date of the initial Registration Statement that such Registration
Statement is not effective.
b) A
Holder may exercise this Warrant by delivering to the Company (i) an
exercise notice, in the form attached hereto on Annex A (the
“Exercise Notice”), appropriately completed and duly signed, and
(ii) payment of the Exercise Price for the number of Warrant Shares as to
which this Warrant is being exercised (which may take the form of a “cashless
exercise” if so indicated in the Exercise Notice and if a “cashless exercise”
may occur at such time pursuant to Section 10 below), and the date
such items are delivered to the Company (as determined in accordance with
the
notice provisions hereof) is an “Exercise Date.” The Holder
shall not be required to deliver the original Warrant in order to effect
an
exercise hereunder. Execution and delivery of the Exercise Notice
shall have the same effect as cancellation of the original Warrant and issuance
of a New Warrant evidencing the right to purchase the remaining number of
Warrant Shares.
5. Delivery
of Warrant Shares.
a) Upon
exercise of this Warrant, the Company shall promptly (but in no event later
than
three Trading Days after the Exercise Date) issue or cause to be issued and
cause to be delivered to or upon the written order of the Holder and in such
name or names as the Holder may designate, a certificate for the Warrant
Shares
issuable upon such exercise, free of restrictive legends unless a registration
statement covering the resale of the Warrant Shares and naming the Holder
as a
selling stockholder thereunder is not then effective and the Warrant Shares
are
not freely transferable without volume restrictions pursuant to Rule 144
under the 1933 Act. The Holder, or any Person so designated by the
Holder to receive Warrant Shares, shall be deemed to have become holder of
record of such Warrant Shares as of the Exercise Date. The Company
shall, upon request of the Holder and provided a registration statement under
the Securities Act providing for the resale of the Warrant Shares is then
in
effect, use its reasonable best efforts to deliver Warrant Shares hereunder
electronically through the Depository Trust Corporation or another established
clearing corporation performing similar functions.
b) This
Warrant is exercisable, either in its entirety or, from time to time, for
a
portion of the number of Warrant Shares. Upon surrender of this
Warrant following one or more partial exercises, the Company shall issue
or
cause to be issued, at its expense, a New Warrant evidencing the right to
purchase the remaining number of Warrant Shares.
c) The
Company’s obligations to issue and deliver Warrant Shares in accordance with the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, any setoff, counterclaim, recoupment, limitation
or
termination, or any breach or alleged breach by the Holder or any other Person
of any obligation to the Company or any violation or alleged violation of
law by
the Holder or any other Person, and irrespective of any other circumstance
which
might otherwise limit such obligation of the Company to the Holder in connection
with the issuance of Warrant Shares. Nothing herein shall limit a
Holder’s right to pursue any other remedies available to it hereunder, at law or
in equity including, without limitation, a decree of specific performance
and/or
injunctive relief with respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock upon exercise of the
Warrant as required pursuant to the terms hereof.
6. Charges,
Taxes and Expenses. Issuance and delivery of certificates
for shares of Common Stock upon exercise of this Warrant shall be made without
charge to the Holder for any issue or transfer tax, withholding tax, transfer
agent fee or other incidental tax or expense in respect of the issuance of
such
certificates, all of which taxes and expenses shall be paid by the Company;
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 registration
of any certificates for Warrant Shares or a Warrant in a name other than
that of
the Holder or an Affiliate thereof. The Holder shall be responsible
for all other tax liability that may arise as a result of holding or
transferring this Warrant or receiving Warrant Shares upon exercise
hereof.
7. Replacement
of Warrant. If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and customary
and
reasonable indemnity, if requested. Applicants for a New Warrant
under such circumstances shall also comply with such other reasonable
regulations and procedures and pay such other reasonable third-party costs
as
the Company may prescribe.
8. Reservation
of Warrant Shares. The Company covenants that it will at all
times reserve and keep available out of the aggregate of its authorized but
unissued and otherwise unreserved Common Stock, solely for the purpose of
enabling it to issue Warrant Shares upon exercise of this Warrant as herein
provided, the number of Warrant Shares which are then issuable and deliverable
upon the exercise of this entire Warrant, free from preemptive rights or
any
other contingent purchase rights of persons other than the Holder (taking
into
account the adjustments and restrictions of Section 9). The Company
covenants that all Warrant Shares so issuable and deliverable shall, upon
issuance and the payment of the applicable Exercise Price in accordance with
the
terms hereof, be duly and validly authorized, issued and fully paid and
nonassessable. 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 of any
requirements of any securities exchange or automated quotation system upon
which
the Common Stock may be listed.
9. Certain
Adjustments. The Exercise Price and number of Warrant Shares
issuable upon exercise of this Warrant are subject to adjustment from time
to
time as set forth in this Section 9.
a) Stock
Dividends and Splits. If the Company, at any time while this
Warrant is outstanding, (i) pays a stock dividend on its Common Stock or
otherwise makes a distribution on any class of capital stock that is payable
in
shares of Common Stock, (ii) subdivides outstanding shares of Common Stock
into a larger number of shares or (iii) combines outstanding shares of
Common Stock into a smaller number of shares, then in each such case the
Exercise Price shall be adjusted to equal the product of (x) the existing
Exercise Price multiplied by (y) a fraction of which the numerator shall
be the
number of shares of Common Stock outstanding immediately before such event
and
of which the denominator shall be the number of shares of Common Stock
outstanding immediately after such event. Any adjustment made
pursuant to clause (i) of this paragraph shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such dividend or distribution, and any adjustment pursuant to clause (ii)
or (iii) of this paragraph shall become effective immediately after the
effective date of such subdivision or combination.
b) Pro
Rata Distributions. If the Company, at any time while this
Warrant is outstanding, distributes to all of its holders of Common Stock
(i) evidences of its indebtedness, (ii) any security (other than a
distribution of Common Stock covered by the preceding paragraph),
(iii) rights or warrants to subscribe for or purchase any security, or
(iv) any other asset (in each case, “Distributed Property”), then in
each such case the Exercise Price in effect immediately prior to the record
date
fixed for determination of stockholders entitled to receive such distribution
shall be adjusted (effective on such record date) to equal the product of
(x)
the existing Exercise Price multiplied by (y) a fraction of which the
denominator shall be the average of the Closing Prices for the 30 Trading
Days
immediately prior to (but not including) such record date and of which the
numerator shall be such average less the then fair market value of the
Distributed Property distributed in respect of one outstanding share of Common
Stock, as reasonably determined by Company.
c) Fundamental
Transactions. If at any time while this Warrant is outstanding,
(i) the Company effects any merger or consolidation of the Company with or
into another Person, (ii) the Company effects any sale of all or
substantially all of its assets in one or a series of related transactions,
(iii) any tender offer or exchange offer (whether by the Company or another
Person) is completed pursuant to which holders of Common Stock are permitted
to
tender or exchange their shares for other securities, cash or property or
(iv) the Company effects any reclassification of the Common Stock or any
compulsory share exchange, pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property (other
than
as a result of a subdivision or combination of shares of Common Stock covered
by
Section 9(a) above) (in any such case, a “Fundamental
Transaction”), then the Holder shall have the right thereafter to receive,
upon exercise of this Warrant, the same amount and kind of securities, cash
or
property as it would have been entitled to receive upon the occurrence of
such
Fundamental Transaction if it had been, immediately prior to such Fundamental
Transaction, the holder of the number of Warrant Shares then issuable upon
exercise in full of this Warrant (the “Alternate
Consideration”). The aggregate Exercise Price for this Warrant
will not be affected by any such Fundamental Transaction, but the Company
shall
apportion such aggregate Exercise Price among the Alternate Consideration
in a
reasonable manner reflecting the relative value of any different components
of
the Alternate Consideration. If holders of Common Stock are given any
choice as to the securities, cash or property to be received in a Fundamental
Transaction, then the Holder shall be given the same choice as to the Alternate
Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. In the event of a Fundamental Transaction,
the Company or the successor or purchasing Person, as the case may be, shall
execute with the Holder a written agreement providing that:
(x) this
Warrant shall thereafter entitle the Holder to purchase the Alternate
Consideration in accordance with this Section 9(c),
(y) in
the case of any such successor or purchasing Person, upon such consolidation,
merger, statutory exchange, combination, sale or conveyance such successor
or
purchasing Person shall be jointly and severally liable with the Company
for the
performance of all of the Company’s obligations under this Warrant and the
Purchase Agreement, and
(z) if
registration or qualification is required under the 1933 Act, the 1934 Act
or
applicable state law for the public resale by the Holder of shares of stock
and
other securities so issuable upon exercise of this Warrant, such registration
or
qualification shall be completed prior to such reclassification, change,
consolidation, merger, statutory exchange, combination or sale.
If,
in
the case of any Fundamental Transaction, the Alternate Consideration includes
shares of stock, other securities, other property or assets of a Person other
than the Company or any such successor or purchasing Person, as the case
may be,
in such Fundamental Transaction, then such written agreement shall also be
executed by such other Person and shall contain such additional provisions
to
protect the interests of the Holder as the Board of Directors of the Company
shall reasonably consider necessary by reason of the foregoing. At
the Holder’s request, any successor to the Company or surviving entity in such
Fundamental Transaction shall issue to the Holder a new warrant consistent
with
the foregoing provisions and evidencing the Holder’s right to purchase the
Alternate Consideration for the aggregate Exercise Price upon exercise
thereof. The terms of any agreement pursuant to which a Fundamental
Transaction is effected shall include terms requiring any such successor
or
surviving entity to comply with the provisions of this paragraph (c) and
insuring that the Warrant (or any such replacement security) will be similarly
adjusted upon any subsequent transaction analogous to a Fundamental
Transaction. If any Fundamental Transaction constitutes or results in
a “Rule 13e-3 transaction” as defined in Rule 13e-3 under the 1934 Act
with respect to the Company in which the consideration issued consists
principally of cash or stock in a non-public company, then at the request
of the
Holder delivered before the 90th day after such Fundamental Transaction,
the
Company (or any such successor or surviving entity) will purchase the Warrant
from the Holder for a purchase price, payable in cash within five Trading
Days
after such request (or, if later, on the effective date of the Fundamental
Transaction), equal to the Black-Scholes value of the remaining unexercised
portion of this Warrant on the date of such request.
d) Subsequent
Equity Sales.
i) If,
at any time while this Warrant is outstanding, the Company issues Additional
Shares of Stock (as defined below) at an effective net price to the Company
(the
“Diluted Price”) that is less than the Exercise Price as adjusted
hereunder to such date, then and in each such case the then-effective Exercise
Price shall be reduced, as of the close of business on the date of such issue
or
sale, to equal the Diluted Price.
ii) No
adjustment shall be made under this Section 9(d) upon the issuance
by the Company of warrants or options to purchase Common Stock or preferred
stock, and any adjustment in connection with such options or warrants
shall be made at the time such options or warrants are exercised and the
Company
issues Common Stock or preferred stock, as applicable, to the holder
thereof.
iii) For
purposes of this Section 9(d), “Additional Shares of Stock”
shall mean all shares of Common Stock and/or preferred stock
issued by the
Company, other than: (1) shares of Common Stock issued upon conversion of
any
shares of preferred stock of the Company; (2) shares of Common Stock and/or
preferred stock and/or warrants and/or options (and the Common Stock or
preferred stock issued upon the exercise of such warrants and/or options),
issued before or after the Closing Date to directors, officers, employees,
consultants and other advisors of the Company and which are approved by at
least
a majority of the Board of Directors of the Company; and (3) shares
of Common Stock or preferred stock or other rights issued in connection with
any
stock dividends, combinations, splits, recapitalizations and the
like.
e) Number
of Warrant Shares. Simultaneously with any adjustment to the
Exercise Price pursuant to paragraphs (a), (b) or (d) of this
Section 9, the number of Warrant Shares that may be purchased upon
exercise of this Warrant shall be increased or decreased proportionately,
so
that after such adjustment the aggregate Exercise Price payable hereunder
for
the increased or decreased number of Warrant Shares shall be the same as
the
aggregate Exercise Price in effect immediately prior to such
adjustment.
f) Calculations. All
calculations under this Section 9 shall be made to the nearest cent
or the nearest 1/100th of a share, as applicable. The number of
shares of Common Stock outstanding at any given time shall not include shares
owned or held by or for the account of the Company, and the disposition of
any
such shares shall be considered an issue or sale of Common Stock.
g) Notice
of Adjustments. Upon the occurrence of each adjustment pursuant
to this Section 9, the Company at its expense will promptly, but in
any event no later than ten Trading Days after such occurrence compute such
adjustment in accordance with the terms of this Warrant and prepare a
certificate setting forth such adjustment, including a statement of the adjusted
Exercise Price and adjusted number or type of Warrant Shares or other securities
issuable upon exercise of this Warrant (as applicable), describing the
transactions giving rise to such adjustments and showing in detail the facts
upon which such adjustment is based. Upon written request, the
Company will promptly deliver a copy of each such certificate to the Holder
and
to the Company’s Transfer Agent.
h) Notice
of Corporate Events. If the Company (i) declares a dividend
or any other distribution of cash, securities or other property in respect
of
its Common Stock, including without limitation any granting of rights or
warrants to subscribe for or purchase any capital stock of the Company or
any
Subsidiary, (ii) authorizes or approves, enters into any agreement
contemplating or solicits stockholder approval for any Fundamental Transaction
or (iii) authorizes the voluntary dissolution, liquidation or winding up of
the affairs of the Company, then the Company shall deliver to the Holder
a
notice describing the material terms and conditions of such transaction,
at
least 20 calendar days prior to the applicable record or effective date on
which
a Person would need to hold Common Stock in order to participate in or vote
with
respect to such transaction, and the Company will take all steps reasonably
necessary in order to insure that the Holder is given the practical opportunity
to exercise this Warrant prior to such time so as to participate in or vote
with
respect to such transaction; provided, however, that the failure to
deliver such notice or any defect therein shall not affect the validity of
the
corporate action required to be described in such notice.
10. Payment
of Exercise Price. The Holder shall pay the Exercise Price in
immediately available funds; provided, however, that if the
Registration Statement did not become effective on or before the Required
Effectiveness Date (as defined in the Registration Rights Agreement) and
is not
continuously effective through the Expiration Date, the Holder may satisfy
its
obligation to pay the Exercise Price through a “cashless exercise,” in which
event the Company shall issue to the Holder the number of Warrant Shares
determined as follows:
|
X
=
Y [(A-B)/A]
|
|
|
where:
|
|
|
X
=
the number of Warrant Shares to be issued to the
Holder.
|
|
|
Y
=
the number of Warrant Shares with respect to which this Warrant
is being
exercised.
|
|
|
A
=
the arithmetic average of the Closing Prices for the 30 Trading
Days
immediately prior to (but not including) the Exercise
Date.
|
|
|
B
=
the Exercise Price.
|
For
purposes of Rule 144 promulgated under the 1933 Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder,
and
the holding period for the Warrant Shares shall be deemed to have commenced,
on
the date this Warrant was originally issued pursuant to the Purchase
Agreement.
11. Fractional
Shares. The Company shall not be required to issue or cause to be
issued fractional Warrant Shares on the exercise of this Warrant. If
any fraction of a Warrant Share would, except for the provisions of this
Section 11, be issuable upon exercise of this Warrant, the number of
Warrant Shares to be issued will be rounded up to the nearest whole
share.
12. Notices. Any
and all notices or other communications or deliveries hereunder (including
without limitation any Exercise Notice) shall be in writing and shall be
deemed
given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
number
specified in this Section 12 prior to 18:30 (New York City time) on a
Trading Day, (ii) the next Trading Day after the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
number
specified in this Section 12 on a day that is not a Trading Day or later
than 18:30 (New York City time) and earlier than 24:00 (New York City time)
on
any Trading Day, (iii) the Trading Day following the date of mailing, if
sent by nationally recognized overnight courier service, or (iv) upon
actual receipt by the party to whom such notice is required to be
given. The address for such notices or communications shall be as set
forth in the Purchase Agreement.
13. Warrant
Agent. The Company shall serve as warrant agent under this
Warrant. Upon 30 days’ notice to the Holder, the Company may
appoint a new warrant agent. Any corporation into which the Company
or any new warrant agent may be merged or any corporation resulting from
any
consolidation to which the Company or any new warrant agent shall be a party
or
any corporation to which the Company or any new warrant agent transfers
substantially all of its corporate trust or stockholders services business
shall
be a successor warrant agent under this Warrant without any further
act. Any such successor warrant agent shall promptly cause notice of
its succession as warrant agent to be mailed (by first class mail, postage
prepaid) to the Holder at the Holder’s last address as shown on the Warrant
Register.
14. Miscellaneous.
a) Subject
to the restrictions on transfer set forth on the first page hereof and provided
that any transferee is an “accredited investor” as that term is defined in Rule
501(a)(3) of Regulation D under the Securities Act of 1933, as amended, and
(i) agrees to all the terms herein and the terms in the Purchase Agreement,
with
respect to the Warrant and the Warrant Shares, that apply to the Purchasers,
(ii) provides investment purposes representations with respect to this Warrant
and the Warrant Shares comparable to Section 4 of the Purchase Agreement
and
(iii) at least 100,000 Warrant Shares (appropriately adjusted for any stock
dividend, split or combination of Common Stock) may be acquired under the
assigned Warrant, this Warrant may be assigned by the Holder. This
Warrant may not be assigned by the Company except to a successor in the event
of
a Fundamental Transaction. This Warrant shall be binding on and inure
to the benefit of the parties hereto and their respective successors and
assigns. Subject to the preceding sentence, nothing in this Warrant
shall be construed to give to any Person other than the Company and the Holder
any legal or equitable right, remedy or cause of action under this
Warrant. This Warrant may be amended only in writing signed by the
Company and the Holder and their successors and assigns.
b) The
Company will not, by amendment of its governing documents 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 action as may be necessary or appropriate in order to
protect
the rights of the Holder against impairment. Without limiting the
generality of the foregoing, the Company (i) will not increase the par
value of any Warrant Shares above the amount payable therefor on such exercise,
(ii) will take all such action as may be reasonably necessary or
appropriate in order that the Company may validly and legally issue fully
paid
and nonassessable Warrant Shares on the exercise of this Warrant, and
(iii) will not close its stockholder books or records in any manner which
unreasonably interferes with the timely exercise of this Warrant.
c) GOVERNING
LAW; VENUE; WAIVER OF JURY TRIAL. ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS WARRANT SHALL
BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
REPUBLIC OF KOREA WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO
THE EXCLUSIVE JURISDICTION OF THE SEOUL CENTRAL DISTRICT COURT OF THE
REPUBLIC OF KOREA, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED
HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION
DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY
SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF ANY SUCH COURT, OR THAT SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF
PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR
OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS
IN
EFFECT FOR NOTICES TO IT UNDER THIS WARRANT AND AGREES THAT SUCH SERVICE
SHALL
CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING
CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW. THE COMPANY AND THE HOLDER HEREBY
WAIVE ALL RIGHTS TO A TRIAL BY JURY.
d) The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
e) In
case any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon
a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed
by its
authorized officer as of the date first indicated above.
|
By:
|
/s/ Xxxxx X. Xxx | |
|
Name:
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Xxxxx X. Xxx | |
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Title:
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Chairman and Chief Executive Officer | |
[Signature
Page to Warrant]
Annex A
FORM
OF
EXERCISE NOTICE
(To
be
executed by the Holder to exercise the right to purchase shares of Common
Stock
under the foregoing Warrant)
The
undersigned is the Holder of Warrant No. _______ (the “Warrant”) issued
by Rexahn Pharmaceuticals, Inc., a Delaware corporation (the
“Company”). Capitalized terms used herein and not otherwise
defined have the respective meanings set forth in the Warrant.
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(a)
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The
Warrant is currently exercisable to purchase a total of ________
Warrant
Shares.
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(b)
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The
undersigned Holder hereby exercises its right to purchase ____________
Warrant Shares pursuant to the
Warrant.
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(c)
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The
Holder intends that payment of the Exercise Price shall be made
as (check
one):
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_______ “Cash
Exercise” under Section 10
_______ “Cashless
Exercise” under Section 10 (if permitted)
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(d)
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If
the holder has elected a Cash Exercise, the holder shall pay the
sum of
$____________ to the Company in accordance with the terms of the
Warrant.
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(e)
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Pursuant
to this exercise, the Company shall deliver to the holder _______________
Warrant Shares in accordance with the terms of the
Warrant.
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(f)
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Following
this exercise, the Warrant shall be exercisable to purchase a total
of
______________ Warrant Shares.
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Dated: _____________________,
______
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Name
of Holder:
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(Print)
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By:
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Name:
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Title:
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(Signature
must conform in all respects to name of holder as specified on
the face of
the Warrant)
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Annex B
FORM
OF
ASSIGNMENT
[To
be
completed and signed only upon transfer of Warrant]
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________ the right represented by the within Warrant
to
purchase ____________ shares of Common Stock of Rexahn
Pharmaceuticals, Inc. to which the within Warrant relates and appoints
________________ attorney to transfer said right on the books of Rexahn
Pharmaceuticals, Inc. with full power of substitution in the
premises.
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Dated: _____________,
______
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(Signature
must conform in all respects to name of holder as specified on
the face of
the Warrant)
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Address
of Transferee
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In
the presence of:
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