Contract

Exhibit 10.24 EXECUTION COPY NEITHER THIS WARRANT NOR ANY SECURITIES THAT MAY BE ISSUED UPON EXERCISE HEREOF HAVE BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE FOREIGN OR STATE SECURITIES LAWS. THIS WARRANT AND SUCH SECURITIES MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN SO REGISTERED AND QUALIFIED OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION AND QUALIFICATION IS NOT REQUIRED HAS BEEN DELIVERED TO THE COMPANY. AMENDED AND RESTATED STOCK PURCHASE WARRANT Englewood Cliffs, New Jersey August 26, 2005 NO. B-7 EpiCept Corporation, a Delaware corporation (the "Company"), hereby certifies that, subject to the terms and conditions set forth herein, SANDERS OPPORTUNITY FUND, L.P. (the "Holder"), is entitled to purchase the Warrant Share Number of shares of Warrant Stock (both as defined below) from the Company at any time or from time to time before the earliest of (i) 5:00 p.m. (New York time) on March 3, 2008 (unless extended pursuant to Section 2(c) hereof), (ii) the effective time of a Sale of the Company (as defined below) or (iii) at the Effective Time (as defined in the Merger Agreement (as defined below) of the Merger (as defined below), for the Exercise Price (as defined below), subject to adjustments as set forth in Sections 5 and 7. This warrant was originally issued in connection with the purchase by the Holder of a Senior Note of the Company in the principal amount set forth on the signature page hereto. The Note is one of a series of notes issued to certain investors in the aggregate maximum principal amount of $4,000,000 (collectively, the "Senior Notes") and this warrant was originally issued as one of a series of Stock Purchase Warrants (collectively, the "Warrants") issued in connection with the issuance of the Senior Notes. This Amended and Restated Stock Purchase Warrant (this "Warrant") is being issued pursuant to the terms of the Amended and Restated Note Purchase Agreement, dated as of August 26, 2005, between the Company and the Purchasers listed on the signature pages thereto (the "Note Purchase Agreement"). 1. Determination of Warrant Stock, Warrant Share Number and Warrant Exercise Price. (a) Warrant Stock. (i) The term "Warrant Stock" shall mean shares of the Company's common stock, $0.0001 par value per share (the "Common Stock"). (ii) If the Company consummates a Qualifying Financing (as defined in the Note), then (A) the term "Warrant Stock" shall mean shares of Common Stock or Preferred Stock ("Next Round Preferred Stock"), as the case may be, issued by the Company in connection with the Qualifying Financing. (iii) If a Sale of the Company (as defined below) is anticipated to occur prior to a Qualifying Financing or an IPO, the term "Warrant Stock" shall mean shares of the Company's Common Stock, unless and until a Qualifying Financing occurs or occurs prior to the Sale of the Company. (iv) Immediately prior to the Effective Time of the Merger (as defined below) and thereafter, the term "Warrant Stock" shall mean shares of the Company's Common Stock. (b) Warrant Share Number. This Warrant shall be exercisable for a number of shares of Warrant Stock (the "Warrant Share Number") as follows: (i) If the Warrant Stock is Next Round Preferred Stock, the Warrant Share Number shall equal 35% of the original principal amount of the Note (the "Principal Amount") divided by the Exercise Price described in Section 1(c)(i) below, such Warrant Share number to be rounded to the nearest whole number. (ii) If the Warrant Stock is Common Stock, the Warrant Share Number shall equal 35% of the Principal Amount divided by the Public Offering Price (or such other Exercise Price) described in Section 1(c)(ii) below, such Warrant Share Number to be rounded to the nearest whole number. (c) Exercise Price. The exercise price per share of Warrant Stock (the "Exercise Price") shall be as follows: (i) If the Warrant Stock is Next Round Preferred Stock, the Exercise Price shall be the amount per share at which the Notes are converted into Next Round Preferred Stock pursuant to the terms of the Note. (ii) If the Warrant Stock is Common Stock, the Exercise Price shall be $0.99 (subject to adjustment as provided in Section 4 hereof); provided that if a Qualifying Financing has occurred and Common Stock was issued in the Qualifying Financing then the Exercise Price shall be the price per share at which the Notes are converted into Common Stock pursuant to the terms of the Note. (d) Defined Terms. For purposes of this Section 1, the following terms shall have the following meanings: (i) "IPO" shall mean a Qualified Public Offering, as such term is defined in the Certificate of Incorporation (as defined in Section 5 below). (ii) "Public Offering Price" shall mean the price at which the Common Stock is sold to the public in an IPO. 2 2. Exercise of Warrant. (a) Mechanics of Exercise. This Warrant may be exercised by the registered holder hereof by surrender to the Company of this Warrant, with the attached form of subscription agreement duly executed by such holder, accompanied by payment equal to the aggregate purchase price for the securities for which this Warrant is then being exercised according to Section 4 hereof. Each Regulation S Purchaser (as defined in the Note Purchase Agreement) wishing to exercise this Warrant must also deliver (i) a written certification to the Company that such holder is not a U.S. person (as defined in Regulation S under the Securities Act) and this Warrant is not being exercised on behalf of a U.S. person or (ii) a written opinion of counsel to the effect that this Warrant and the securities to be delivered upon exercise hereof have been registered under the Securities Act or are exempt from registration thereunder. (b) Warrant Agent. In the event that a bank or trust company is appointed as trustee for the holder of this Warrant pursuant to Section 4(b) hereof, such bank or trust company will have all the powers and duties of a warrant agent appointed pursuant to Section 9 hereof and will accept, in its own name for the account of the Company or such successor entity as may be entitled thereto, all amounts otherwise payable to the Company or such successor, as the case may be, upon exercise of this Warrant. (c) Expiration. This Warrant and the holder's rights hereunder will expire on the earliest of (a) 5:00 P.M. (New Jersey time) on March 3, 2008 (the "Expiration Date"); provided, however, that if an IPO has not been consummated on or prior to the first anniversary of the date hereof, the Expiration Date shall be extended to March 3, 2009, (b) the effective time of a Sale of the Company or (c) the repayment of the Holder's Senior Notes. If the Warrant Stock is Next Round Preferred Stock, then upon and after the Automatic Conversion Effective Time (as defined in Section 6), the right to purchase shares of Warrant Stock granted herein shall terminate, and this Warrant shall represent the right to purchase shares of Common Stock, as provided in Section 6 hereof. For purposes hereof, a "Sale of the Company" means (a) a merger, consolidation, share exchange or other form of corporate reorganization involving the Company in which the stockholders of the Company immediately before such merger, consolidation, share exchange or other corporate reorganization dispose of in excess of fifty percent (50%) of the issued and outstanding capital stock of the Company; (b) any transaction or series of related transaction in which (i) all or substantially all of the assets of the Company are sold, or (ii) excess of fifty percent (50%) of the shares of Common Stock (assuming conversion of all convertible securities) is issued transferred to any person (other than in a Qualifying Financing); or (c) any event that would trigger payments to the holders of any series of the Preferred Stock under Section 1(c) of Article FOURTH of the Current Charter in the absence of the prescribed vote of the holders of such series to the contrary and "Merger" means the merger of a wholly owned subsidiary of the Company with and into Maxim Pharmaceuticals Inc. ("Maxim") pursuant to that certain Agreement and Plan of Merger (the "Merger Agreement") among the Company, Magazine Acquisition Corp. and Maxim dated as of September 6, 2005. (d) Delivery of Certificates. As soon as is practicable after any exercise of this Warrant, the Company, at its own expense, will deliver to the registered holder hereof one or more certificates representing the securities to which such holder is entitled in respect of such 3 exercise, together, in the case of any partial exercise, with a new Warrant representing the unexercised portion hereof. (e) Fractional Shares. In the event that any exercise of this Warrant would, but for the provisions of this Section 2(e), result in the issuance of any fractional share of capital stock, then in lieu of such fractional share, such shares shall be rounded up to the nearest whole number of shares of capital stock. (f) Deemed Exercise. Effective immediately prior to the Effective Time of the Merger, without further act on the part of the Holder, this Warrant shall be deemed to be exercised for the number of shares of Common Stock calculated pursuant to Section 1(b)(ii) hereof. Payment of the Exercise Price shall be deemed paid by the net issuance method described in Section 3(b)(ii) hereof. For the avoidance of doubt, upon the closing of the Merger, assuming that there are no stock splits, combinations or dividends (other than the reverse stock split contemplated by the Merger Agreement), this Warrant shall be exchanged for 21,053 shares of Common Stock. 3. Payment of Exercise Price. The Exercise Price may be paid at the holder's election either (a) by cash, certified or official bank check payable to the order of the Company, or wire transfer to its account, or (b) by the net issuance method as described below: (i) If the Warrant Stock is Next Round Preferred Stock, then prior to the Automatic Conversion Effective Time (as defined in Section 7 hereof), the Company shall issue Warrant Stock under the net issuance method in accordance with the following formula: X = (Y)(A-B)/A Where: X = the number of shares of Warrant Stock to be issued to the holder Y = the number of shares of Warrant Stock requested to be exercised under this Warrant A = the current fair market value of one (1) share of Warrant Stock B = the Exercise Price As used herein, the current fair market value of a share of Warrant Stock shall mean the price per share which the Company could obtain from a willing buyer (not a current employee or director) for shares of Warrant Stock, as determined in good faith by the Company's Board of Directors, unless the Company shall become subject to a merger, consolidation or other acquisition pursuant to which the holders of Warrant Stock receive securities and/or other property in exchange for their Warrant Stock, in which case the fair market value of Warrant Stock shall be deemed to be the value (determined in good faith by the Company's Board of Directors of the securities and other property received by the holders of the Company's Warrant Stock per share of Warrant Stock pursuant to such merger, consolidation or other acquisition. (ii) If the Warrant Stock is Common Stock, or if this Warrant is exercised either upon or after the Automatic Conversion Effective Time, the Company shall issue Common Stock under the net issuance method in accordance with the following formula: 4 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 requested to be exercised under this Warrant A = the current fair market value of one (1) share of Common Stock B = the Exercise Price As used herein, current fair market value of Common Stock shall mean with respect to each share of Common Stock: (A) if the exercise is in connection with the Company's initial public offering of Common Stock, and if the Company's registration statement relating to such public offering has been declared effective by the Securities and Exchange Commission, then the initial "Price to Public" specified in the final prospectus with respect to the offering; (B) if this Warrant is exercised after, and not in connection with, the Company's initial public offering of Common Stock or the Company's Common Stock is otherwise registered under the Securities Exchange Act of 1934, as amended, and (1) if the Common Stock is traded on a national securities exchange or quoted on the Nasdaq Stock Market, the fair market value shall be deemed to be the average of the closing prices over a ten (10) day period ending three days before the day the current fair market value of the Common Stock is being determined; or (2) if the Common Stock is not listed on a national securities exchange or quoted on the Nasdaq Stock Market but is actively traded over-the-counter, the fair market value shall be deemed to be the average of the closing bid and asked prices reported by the National Quotation Bureau (or similar system) over the ten (10) day period ending three days before the day the current fair market value of the Common Stock is being determined; (C) if at any time the Common Stock is not listed on any national securities exchange or quoted on the Nasdaq Stock Market or actively traded in the over-the-counter market, the current fair market value of Common Stock shall be the price per share which the Company could obtain from a willing buyer (not a current employee or director) for shares of Common Stock sold by the Company, from authorized but unissued shares, as determined in good faith by its Board of Directors, unless the Company shall become subject to a merger, consolidation or other acquisition pursuant to which the holders of Common Stock receive securities and/or other property in exchange for their Common Stock, in which case the fair market value of Common Stock shall be deemed to be the value of the securities and other property received by the holders of the Company's Common Stock per share of Common Stock pursuant to such merger, consolidation or other acquisition. (D) In connection with a deemed exercise of this Warrant upon consummation 5 of the Merger, the current fair market value of one (1) share of Common Stock shall be $1.32. 4. Adjustment for Reorganizations, Etc. (a) Certain Adjustments. (i) If the Warrant Stock is Next Round Preferred Stock, then in case at any time or from time to time prior to the exercise of this Warrant but before the Automatic Conversion Effective Time, the Company effects an "Extraordinary Warrant Stock Event" (as hereafter defined), then in each such case, (A) the number of shares of Warrant Stock purchasable hereunder shall be adjusted to the number obtained by multiplying the number of shares of Warrant Stock purchasable hereunder immediately before such Extraordinary Warrant Stock Event by a fraction, the numerator of which shall be the number of shares of Warrant Stock outstanding (excluding treasury stock) immediately after such Extraordinary Warrant Stock Event and the denominator of which shall be the number of shares of Warrant Stock outstanding (excluding treasury stock) immediately before such Extraordinary Warrant Stock Event, and (B) the Exercise Price shall be adjusted to the number obtained by multiplying the Exercise Price in effect immediately before such Extraordinary Warrant Stock Event by a fraction, the numerator of which shall be the number of shares of Warrant Stock outstanding (excluding treasury stock) immediately before such Extraordinary Warrant Stock Event and the denominator of which shall be the number of shares of Warrant Stock outstanding (excluding treasury stock) immediately after such Extraordinary Warrant Stock Event, in each case subject to further adjustment thereafter as provided herein. The term "Extraordinary Warrant Stock Event" shall mean (x) the issuance of additional shares of Warrant Stock as a dividend or other distribution on outstanding Warrant Stock, (y) the subdivision of outstanding shares of Warrant Stock into a greater number of shares of Warrant Stock, or (z) the combination of outstanding shares of Warrant Stock into a smaller number of shares of Warrant Stock. (ii) If the Warrant Stock is Common Stock or if at any time or from time to time prior to the exercise of this Warrant but after the Automatic Conversion Effective Time, the Company effects an "Extraordinary Common Stock Event" (as hereafter defined), then in each such case, (A) the number of shares of Common Stock purchasable hereunder shall be adjusted to the number obtained by multiplying the number of shares of Common Stock purchasable hereunder immediately before such Extraordinary Common Stock Event by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding (excluding treasury stock) immediately after such Extraordinary Common Stock Event and the denominator of which shall be the number of shares of Common Stock outstanding (excluding treasury stock) immediately before such Extraordinary Common Stock Event, and (B) the Exercise Price shall be adjusted to the number obtained by multiplying the Exercise Price in effect immediately before such Extraordinary Common Stock Event by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding (excluding treasury stock) immediately before such Extraordinary Common Stock Event and the denominator of which shall be the number of shares of Common Stock outstanding (excluding treasury stock) immediately after such Extraordinary Common Stock Event, in each case subject to further adjustment thereafter as provided herein. The term "Extraordinary Common Stock Event" shall mean (x) the issuance of additional shares of Common Stock as a dividend or other distribution on outstanding Common Stock, (y) the subdivision of outstanding shares of Common Stock into a greater number of 6 shares of Common Stock, or (z) the combination of outstanding shares of Common Stock into a smaller number of shares of Common Stock. (iii) Subject to earlier termination of this Warrant upon a Sale of the Company or the Merger, at any time or from time to time prior to the exercise of this Warrant, the Company (A) effects a capital reorganization, reclassification or recapitalization, or (B) consolidates with or merges with or into any other person or entity, then in each such case, the registered holder of this Warrant, upon exercise hereof at any time after or simultaneously with the consummation of such reorganization, reclassification, recapitalization, consolidation or merger, as the case may be, will receive, in lieu of the securities issuable upon such exercise before such consummation or effective date, the other securities, cash, and/or property to which such holder would have been entitled upon such consummation or in connection with such dissolution, as the case may be, if such holder had exercised this Warrant immediately prior thereto, all subject to further adjustment thereafter as provided herein. (b) Appointment of Trustee for Warrant Holders Upon Dissolution. In the event of any dissolution of the Company, the Company, prior to such dissolution, will, at its expense, deliver or cause to be delivered the securities, property, and/or cash receivable by the registered holder of this Warrant after the effective date of such dissolution pursuant to this Section 5 to a bank or trust company having its principal office in Delaware, as trustee for the registered holder of this Warrant. (c) Continuation of Terms. Subject to earlier termination of this Warrant upon a Sale of the Company or the Merger, upon any reorganization, consolidation or merger referred to in this Section 5, this Warrant will continue in full force and effect and the terms hereof will be applicable to the securities, cash, and/or property receivable on the exercise of this Warrant after or simultaneously with the consummation of such reorganization, consolidation or merger and will be binding upon the issuer of any such stock or other securities. 5. No Dilution or Impairment. The Company will not, by amendment of its Certificate of Incorporation (as amended and/or restated from time to time, the "Certificate of Incorporation") or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other 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 registered holder of this Warrant against dilution. Without limiting the generality of the foregoing, the Company will 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 stock upon exercise of this Warrant from time to time. 6. Automatic Conversion of the Warrant Stock. If the Warrant Stock is Next Round Preferred Stock and at any time the issued and outstanding shares of the Warrant Stock shall be automatically converted into shares of Common Stock under the terms of the Certificate of Incorporation, then upon and after the effective time of such automatic conversion of the Warrant Stock (the "Automatic Conversion Effective Time"), the right to purchase Warrant Stock granted herein shall terminate, and this Warrant shall represent the right to purchase a number of shares of Common Stock calculated as follows: 7 X = (Y) (Z) Where: X = the number of shares of Common Stock purchasable under this Warrant upon and after such Automatic Conversion Effective Time Y = the number of shares of Warrant Stock purchasable under this Warrant immediately prior to such Automatic Conversion Effective Time Z = the number of shares of Common Stock issuable upon conversion of each share of Warrant Stock immediately prior to such Automatic Conversion Effective Time and the Exercise Price per share of Common Stock shall be a price calculated as follows: A = (B)(X)/Y Where: A = the Exercise Price per share of Common Stock upon and after such Automatic Conversion Effective Time B = the Exercise Price per share of Warrant Stock immediately prior to such Automatic Conversion Effective Time X = the number of shares of Warrant Stock purchasable under this Warrant immediately prior to such Automatic Conversion Effective Time Y = the number of shares of Common Stock purchasable under this Warrant upon and after such Automatic Conversion Effective Time Thereafter, the number of shares of Common Stock purchasable hereunder and the Exercise Price per share shall be subject to adjustment for the types of events described in Section 5 above that occur with respect to the Common Stock. 7. Notices of Record Date, Etc. In the event from time to time of any proposed or contemplated: (a) taking by the Company of a record of the holders of any class of securities for the purpose of determining the holders thereof who are entitled to receive any dividend or other distribution, or any right to subscribe for, purchase, or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any other right; (b) capital reorganization of the Company, any reclassification or recapitalization of the capital stock of the Company, or any transfer of all or substantially all the assets of the 8 Company to, or any consolidation or merger of the Company with or into, any other person or entity; or (c) voluntary or involuntary dissolution, liquidation, or winding-up of the Company; then, and in each such event the Company will mail or cause to be mailed to the registered holder of this Warrant a notice specifying (i) the date on which any such record is to be taken for the purpose of such dividend, distribution, or right, and stating the amount and character of such dividend, distribution, or right, or (ii) the date on which any such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation, or winding-up is anticipated to take place and the time, if any is to be fixed, as of which the holders of record of any class or series of the Company's capital stock or other securities will be entitled to exchange such stock or other securities for other securities, cash, and/or other property deliverable on such reorganization, reclassification, recapitalization, transfer, consolidation, merger, dissolution, liquidation, or winding-up. Such notice will be mailed at least twenty (20) days prior to the earliest date specified in such notice on which any such action or transaction is to be taken or consummated. 8. Reservation of Securities Issuable on Exercise of Warrant. The Company at all times and from time to time will reserve and keep available, solely for issuance and delivery on the exercise of this Warrant, the quality and quantities of securities from time to time issuable upon exercise of this Warrant. If at any time the Company does not have sufficient authorized securities to comply with the foregoing sentence, the Company promptly will take all steps (including, without limitation, amending the Certificate of Incorporation) necessary to provide the quality and quantity of securities sufficient to effect the exercise in full of this Warrant. 9. Warrant Agent. The Company may, by written notice to the registered holder of this Warrant, appoint an agent having an office in Delaware for the purpose of issuing securities upon exercise of this Warrant, exchanging or replacing this Warrant, or any of the foregoing, and thereafter any such issuance, exchange, or replacement as the case may be, will be made at such office by such agent. 10. Transfer and Exchange of Warrant. (a) Transfer. This Warrant and any securities issuable upon exercise of this Warrant may not be transferred or otherwise disposed of unless they have been registered or qualified pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and applicable foreign or state securities laws, or an opinion to the effect that such registration and qualification is not required and has been delivered to the Company. (b) Exchange. Upon surrender of this Warrant for transfer or exchange, a new Warrant or new Warrants of the same tenor and exercisable for the same aggregate number of shares of Warrant Stock as the Warrant so surrendered will be issued to, and registered in the name of, the transferee or transferees. The Company may treat the person in whose name this Warrant is registered as the holder hereof for all purposes. 9 11. Captions. The captions of sections or subsections of this Warrant are for reference only and will not affect the interpretation or construction of this Warrant. 12. Equitable Relief. The Company hereby acknowledges that any breach by it of its obligations under this Warrant would cause substantial and irreparable damage to the registered holder hereof and that money damages would be an inadequate remedy therefor, and accordingly, acknowledges and agrees that, in addition to any other rights and remedies to which the registered holder hereof may be entitled in respect of any breach of such obligations, such holder will be entitled to an injunction, specific performance and/or other equitable relief to prevent the breach of such obligations. 13. Waivers. No waiver of any breach or default hereunder will be valid unless in a writing signed by the registered holder hereof. No failure or other delay by the registered holder hereof exercising any right, power, or privilege hereunder will be or operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. 14. Governing Law. This Warrant will be governed by and interpreted and construed in accordance with the internal laws of the State of Delaware (without reference to principles of conflicts or choice of law). [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 10 Executed and delivered under seal on and as of the date first above written. MAXIMUM NOTE PRINCIPAL: $238,200.00 EPICEPT CORPORATION By: /s/ Robert W. Cook ------------------------------------ (signature) Name: Robert W. Cook (printed) Its: Chief Financial Officer (title) ACCEPTED AND AGREED: SANDERS OPPORTUNITY FUND, L.P. BY: SOF MANAGEMENT, LLC By: /s/ Don A. Sanders --------------------------------- (signature) Name: /s/ Don A. Sanders ------------------------------- (printed) Its: Chief Investment Officer (title) SUBSCRIPTION FORM The undersigned, the registered holder of the within Stock Purchase Warrant, hereby elects to exercise the purchase right represented by such Warrant as follows: ___ The undersigned hereby elects to purchase ________ shares of Warrant Stock (as defined in this Warrant) and herewith makes payment of $_____________ therefor. ___ The undersigned hereby elects to exercise this Warrant by the net issuance method described in Section 4 of this Warrant and to receive ___________ shares of Warrant Stock (as defined in this Warrant). The undersigned further requests that the certificates representing such shares be issued in the name of and delivered to ______________________________________ and if such shares shall not include all of the shares issuable under this Warrant, that a new Warrant of like tenor and date be delivered to the undersigned for the shares not issued. Dated: _______________________ ___________________________________ Name of Registered Holder