Exhibit 10.54
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "1933 ACT"). THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY
COUNSEL) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE 1933 ACT.
WARRANT AGREEMENT
To Purchase 142,222 Shares of the Series B Preferred Stock of
ONTOGENY, INC.
Dated as of January 29, 1996 (the "Effective Date")
WHEREAS, Ontogeny, Inc., a Delaware corporation (the "Company") has entered
into a Master Equipment Lease Agreement dated as of November 7, 1995, Lease Line
Schedule Nos. 01 and 02, and certain other related schedules and other documents
(collectively, as amended or supplemented from time to time the "Leases") with
Lighthouse Capital Partners, L.P., a Delaware limited partnership (the
"Warrantholder"); and
WHEREAS, the Company desires to grant to Warrantholder, in consideration
for such Leases, the right to purchase shares of its Preferred Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and
delivering such Leases and in consideration of the mutual covenants and
agreements contained herein, the Company and Warrantholder agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE PREFERRED STOCK.
The Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth, to
subscribe to and purchase, from the Company, at a price per share equal to
$1.125 (the "Exercise Price"), 142,222 fully paid and nonassessable shares of
the Company's Series B Preferred Stock, $.01 par value per share (the "Preferred
Stock"). The number and purchase price of such shares are subject to adjustment
as provided in Section 8 hereof.
2. TERM OF THE WARRANT AGREEMENT.
(a) Except as otherwise provided for herein, the term of this Warrant
Agreement and the right to purchase Preferred Stock as granted herein shall
commence on the Effective Date and shall be exercisable for a period of ten (10)
years.
(b) Acceleration of Term Upon Initial Public Offering. Notwithstanding the
term of this Warrant Agreement fixed pursuant to Section 2(a) hereof,
Warrantholder's right to purchase Preferred Stock as granted herein shall
expire, if not previously exercised, immediately upon the closing of the
issuance and sale of shares of Common Stock of the Company in the
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Company's first public offering of securities for its own account pursuant to an
effective registration statement under the 1933 Act (the "Initial Public
Offering"), provided that the underwriters request that the Warrantholder
exercise this Warrant.
The Company shall notify the Warrantholder if the Initial Public Offering
is proposed, within a reasonable period of time prior to the filing of a
registration statement and if the Company fails to deliver such written notice
within a reasonable period of time, anything to the contrary in this Warrant
Agreement notwithstanding, the rights to purchase will not expire until ten (10)
business days after the Company delivers such notice to the Warrantholder. Such
notice shall also contain such details of the proposed Initial Public Offering
as are reasonable in the circumstances and notice that this Warrant Agreement is
expected to expire upon the later of (i) the closing of the Initial Public
Offering or (ii) the date which is ten (10) days after the date the
Warrantholder receives the notice. If such closing does not take place within
six (6) months, the Company shall promptly notify the Warrantholder that such
proposed transaction has been terminated. Anything to the contrary in this
Warrant Agreement notwithstanding, the Warrantholder may rescind any exercise of
its purchase rights promptly after such notice of termination of the proposed
transaction if the exercise of Warrants occurred after the Company notified the
Warrantholder that the Initial Public Offering was proposed or if the exercise
were otherwise precipitated by such proposed Initial Public Offering. In the
event of such rescission, the Warrants will continue to be exercisable on the
same terms and conditions.
3. EXERCISE OF THE PURCHASE RIGHTS.
The purchase rights set forth in this Warrant Agreement are exercisable by
the Warrantholder, in whole or in part, at any time, or from time to time, prior
to the expiration of the term set forth in Section 2 above, by tendering to the
Company at its principal office a notice of exercise in the form attached hereto
as Exhibit I (the "Notice of Exercise"), duly completed and executed. Promptly
upon receipt of the Notice of Exercise and the payment of the purchase price in
accordance with the terms set forth below, and in no event later than twenty-one
(21) days thereafter, the Company shall issue to the Warrantholder a certificate
for the number of shares of Preferred Stock purchase and shall execute the
Notice of Exercise indicating the number of shares which remain subject to
future purchases, if any.
The Exercise Price may be paid at the Warrantholder's election either (i)
by cash or check, (ii) by the surrender by the Warrantholder to the Company of
any promissory notes or other obligations issued by the Company, with all such
notes and obligations so surrendered being credited against the Exercise Price
in an amount equal to the principal amount thereof plus accrued interest to the
date of surrender, (iii) by surrender of Warrants ("Net Issuance") as determined
below, or (iv) by any combination of the foregoing. If the Warrantholder elects
the Net Issuance method, the Company will issue Preferred Stock (or Common Stock
if the Preferred Stock has been automatically converted into Common Stock) in
accordance with the following formula:
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X = Y(A-B)
------
A
Where: X = the number of shares of Preferred Stock (or Common Stock) to be
issued to the Warrantholder.
Y = the number of shares of Preferred Stock (or Common Stock)
requested to be exercised under this Warrant Agreement.
A = the fair market value of one (1) share of Preferred Stock (or
Common Stock).
B = the Exercise Price in effect under the Warrant Agreement at the
time the net issue election is made pursuant to this Section 3.
As used herein, current fair market value of a share of Preferred Stock (or
Common Stock if the Preferred Stock has been automatically converted into Common
Stock) shall mean with respect to each share of Preferred Stock (or Common
Stock):
(i) if the exercise is in connection with an initial public
offering, and if the Company's Registration Statement relating to such public
offering has been declared effective by the SEC, then the initial "Price to
Public" specified in the final prospectus with respect to the offering
multiplied by the number of shares of Common Stock into which each share of
Preferred Stock is then convertible;
(ii) if this Warrant is exercised after, and not in connection with
the Company's initial public offering, and:
(1) if traded on a securities exchange, the fair market value
of the Common Stock shall be deemed to be the average of the closing prices over
a twenty-one (2 1) day period ending three days before the day the current fair
market value of the securities is being determined and the fair market value of
the Preferred Stock shall be deemed to be such fair market value of the Common
Stock multiplied by the number of shares of Common Stock into which each share
of Preferred Stock is then convertible; or
(2) if actively traded over-the-counter, the fair market
value of the Common Stock shall be deemed to be the average of the closing bid
and asked prices quoted on the NASDAQ system (or similar system) over the
twenty-one (21) day period ending three days before the day the current fair
market value of the securities is being determined and the fair market value of
the Preferred Stock shall be deemed to be such fair market value of the Common
Stock multiplied by the number of shares of Common Stock into which each share
of Preferred Stock is then convertible; and
(iii) if at any time the Common Stock is not listed on any
securities exchange or quoted in the NASDAQ System or the over-the-counter
market, the current fair market value of the Common Stock shall be the highest
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
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Directors, and the fair market value of the Preferred Stock shall be deemed to
be such fair market value of the Common Stock multiplied by the number of shares
of Common Stock into which each share of Preferred Stock is then convertible;
provided, that if the Company shall become subject to a merger, acquisition or
other consolidation pursuant to which the Company is not the surviving party,
the fair market value of the Common Stock shall be deemed to be the value per
share of the consideration received by the holders of the Company's Common Stock
pursuant to such merger or acquisition and the fair market value of the
Preferred Stock shall be deemed to be such fair market value of the Common Stock
multiplied by the number of shares of Common Stock into which each share of
Preferred Stock is then convertible.
Upon partial exercise by either cash or Net Issuance, the Company shall
promptly issue an amended Warrant Agreement representing the remaining number of
shares purchasable hereunder. All other terms and conditions of such amended
Warrant Agreement shall be identical to those contained herein, including, but
not limited to the Effective Date hereof.
4. RESERVATION OF SHARES.
(a) Authorization and Reservation of Shares. During the term of this
Warrant Agreement, the Company will at all times have authorized and reserved a
sufficient number of shares of (i) its Preferred Stock to provide for the
exercise of the rights to purchase Preferred Stock as provided for herein and
(ii) its Common Stock to provide for the conversion into shares of Common Stock
of all shares of Preferred Stock receivable upon such exercise.
(b) Registration or Listing. If any shares of Preferred Stock or Common
Stock required to be reserved hereunder require registration with or approval of
any governmental authority under any Federal or State law (other than any
registration under the 1933 Act, as then in effect, or any similar Federal
statute then enforced, or any state securities law, required by reason of any
transfer involved in such conversion), or listing on any domestic securities
exchange, before such shares may be issued upon conversion, the Company will at
its expense and as expeditiously as possible, use its best efforts to cause such
shares to be duly registered. listed or approved for listing on such domestic
securities exchange, as the case may be.
5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of the Warrant, but in lieu of such fractional shares
the Company shall make a cash payment therefor upon the basis of the Exercise
Price then in effect.
6. NO RIGHTS AS SHAREHOLDER.
This Warrant Agreement does not entitle the Warrantholder to any voting
rights or other rights as a shareholder of the Company prior to the exercise of
the Warrant.
7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of the
registered holder of this Warrant Agreement.
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8. ADJUSTMENT RIGHTS.
The purchase price per share and the number of shares of Preferred Stock
purchasable hereunder are subject to adjustment, as follows:
(a) Merger and Sale of Assets. If at any time there shall be a capital
reorganization of the shares of the Company's stock (other than a combination,
reclassification, exchange or subdivision of shares otherwise provided for
herein), or a merger or consolidation of the Company with or into another
corporation when the Company is not the surviving corporation, or the sale of
all or substantially all of the Company's properties and assets to any other
person (hereinafter referred to as a "Merger Event"), then, as a part of such
Merger Event, lawful provision shall be made so that the Warrantholder shall
thereafter be entitled to receive, upon exercise of the Warrant, the number and
kind of shares of stock or other securities of the successor corporation or cash
or other property that the Warrantholder would have been entitled to receive if
such Warrantholder had exercised this Warrant immediately prior to the Merger
Event. In any such case, appropriate adjustment (as determined in good faith by
the Company's Board of Directors) shall be made in the application of the
provisions of this Warrant Agreement with respect to the rights and interest of
the Warrantholder after the Merger Event to the end that the provisions of this
Warrant Agreement (including adjustments of the Exercise Price and number of
shares of Preferred Stock purchasable) shall be applicable to the greatest
extent possible.
(b) Reclassification of Shares. If the Company at any time shall, by
combination, reclassification, exchange or subdivision of securities or
otherwise, change any of the Series B Preferred Stock into the same or a
different number of securities of any other class or classes, this Warrant
Agreement shall thereafter represent the right to acquire such number and kind
of securities as would have been issuable as the result of such change with
respect to the securities which were subject to the purchase rights under this
Warrant Agreement immediately prior to such combination, reclassification,
exchange, subdivision or other change.
(c) Subdivision or Combination of Shares. If the Company at any time shall
combine or subdivide (by split-up or otherwise) its Preferred Stock or issue
additional shares of Preferred Stock in payment of a stock dividend on the
Preferred Stock, the number of shares of Preferred Stock issuable on the
exercise of this Warrant Agreement shall forthwith be proportionately increased
in the case of a subdivision or stock dividend, or proportionately decreased in
the case of a combination, and the Exercise Price shall be proportionately
decreased in the case of a subdivision or stock dividend, or proportionately
increased in the case of a combination.
(d) Antidilution Rights. Additional antidilution rights applicable to the
Preferred Stock purchasable hereunder are as set forth in the Company's
Certificate of Incorporation, as amended through the Effective Date, a true and
complete copy of which is attached hereto as Exhibit III (the "Charter"). The
Company shall promptly provide the Warrantholder with any restatement, amendment
modification or waiver of the Charter affecting such antidilution rights. The
Company will give Warrantholder notices of all dilutive issuances of its stock.
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(e) Notice of Adjustments. If: (i) the Company shall declare any dividend
or distribution upon its stock, whether in cash, property, stock or other
securities; (ii) the Company shall offer for subscription pro rata to the
holders of any class of its Preferred Stock or other convertible stock any
additional shares of stock of any class or other rights; (iii) there shall be
any Merger Event; or (iv) there shall be any voluntary or involuntary
dissolution, liquidation or winding up of the Company; then, in connection with
each such event, the Company shall send to the Warrantholder: (A) at least
twenty (20) days prior written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend, distribution,
subscription rights (specifying the date on which the holders of Preferred Stock
shall be entitled thereto) or for determining rights to vote in respect of such
Merger Event, dissolution, liquidation or winding up; and (B) in the case of any
such Merger Event, dissolution, liquidation or winding up, at least twenty (20)
days prior written notice of the date when the same shall take place (and
specifying the date on which the holders of Preferred Stock shall be entitled to
exchange their Preferred Stock for securities or other property deliverable upon
such Merger Event, dissolution, liquidation or winding up).
Each such written notice shall set forth, in reasonable detail, (i) the
event requiring the adjustment, (ii) the amount of the adjustment, (iii) the
method by which such adjustment was calculated, (iv) the Exercise Price, and (v)
the number of shares subject to purchase hereunder after giving effect to such
adjustment, and shall be given by first class mail, postage prepaid, addressed
to the Warrantholder, at the address as shown on the books of the Company.
(f) Timely Notice. Failure to timely provide such notice required by
subsection (e) above shall entitle Warrantholder to retain the benefit of the
applicable notice period notwithstanding anything to the contrary contained in
any insufficient notice received by Warrantholder. The notice period shall begin
on the date Warrantholder actually receives a written notice containing all the
information specified above.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
(a) Reservation of Preferred Stock. The Preferred Stock issuable upon
exercise of the Warrantholder's rights and the Common Stock issuable upon
conversion thereof has been duly and validly reserved and, when issued in
accordance with the provisions of this Warrant Agreement, will be validly
issued, fully paid and non-assessable, and will be free of any taxes, liens,
charges or encumbrances of any nature whatsoever; provided, however, that the
Preferred Stock issuable pursuant to this Warrant Agreement may be subject to
restrictions on transfer under state and/or Federal securities laws. The Company
has made available to the Warrantholder true, correct and complete copies of its
Charter and Bylaws, as amended, and minutes of all Board of Directors (including
all committees of the Board of Directors, if any) and Shareholder meetings from
inception through November 7, 1995. The issuance of certificates for shares of
Preferred Stock upon exercise of the Warrant shall be made without charge to the
Warrantholder for any issuance tax in respect thereof, or other cost incurred by
the Company in connection with such exercise and the related issuance of shares
of Preferred Stock. The Company shall not be required to pay any tax which may
be payable in respect of any transfer involved and the issuance and delivery of
any certificate in a name other than that of the Warrantholder.
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(b) Due Authority. The execution and delivery by the Company of this
Warrant Agreement and the performance of all obligations of the Company
hereunder, including the issuance to Warrantholder of the right to acquire the
shares of Preferred Stock have been duly authorized by all necessary corporate
action on the part of the Company, and the Leases and this Warrant Agreement are
not inconsistent with the Company's Charter or bylaws, do not contravene any law
or governmental rule, regulation or order applicable to it, do not and will not
contravene any provision of, or constitute a default under, any indenture,
mortgage, contract or other instrument to which it is a party or by which it is
bound, and the Leases and this Warrant Agreement constitute legal, valid and
binding agreements of the Company, enforceable in accordance with their
respective terms.
(c) Consents and Approvals. No consent or approval of, giving of notice
to, registration with, or taking of any other action in respect of any state,
Federal or other governmental authority or agency is required with respect to
the execution, delivery and performance by the Company of its obligations under
this Warrant Agreement, except for the filing of notices pursuant to Regulation
D under the 1933 Act and Section 25102(f) of the California Corporate Securities
Law, which filings will be effective by the time required thereby.
(d) Issued Securities. All issued and outstanding shares of Common Stock,
Preferred Stock or any other securities of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. All outstanding shares
of Common Stock, Preferred Stock and any other securities were issued in full
compliance with all Federal and state securities laws. In addition:
(i) The authorized capital of the Company consists of (A) 20,000,000
shares of Common Stock, of which 2,154,200 shares are issued and outstanding,
(B) 4,922,299 shares of Series A Preferred Stock, of which 4,853,334 shares are
issued and outstanding and are convertible as of the date hereof into 4,853,334
shares of Common Stock, and (C) 8,000,000 shares of Series B Preferred Stock, of
which 7,402,779 shares are issued and outstanding and are convertible as of the
date hereof into 7,402,779 shares of Common Stock.
(ii) There are no other options, warrants, conversion privileges or
other rights presently outstanding to purchase or otherwise acquire any
authorized but unissued shares of the Company's capital stock or other
securities of the Company, except for those described in Exhibit C to the
Company's Series B Stock Purchase Agreement dated December 13, 1995, and except
for an additional 44,444 shares of Series B Preferred Stock which the Company is
obligated to issue to certain investors.
(iii) Except as stated in the Company's Charter and the Company's
Amended and Restated Registration Rights and Right of First Refusal Agreement,
no shareholder of the Company has preemptive rights to purchase new issuances of
the Company's capital stock.
(e) Insurance. The Company has in full force and effect insurance
policies, with extended coverage, insuring the Company and its property and
business against such losses and risks, and in such amounts, as are customary
for corporations engaged in a similar business and similarly situated.
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(f) Other Commitments to Register Securities. Except as set forth in this
Warrant Agreement, the Amended and Restated Registration Rights and Right of
First Refusal Agreement dated as of December 13, 1995 between the Company and
certain shareholders and the Stock Purchase Agreement dated September 2, 1994
between the Company and a certain Institution, the Company is not, pursuant to
the terms of any other agreement currently in existence, under any obligation to
register under the 1933 Act any of its presently outstanding securities or any
of its securities which may hereafter be issued.
(g) Exempt Transaction. Subject to the accuracy of the Warrantholder's
representations in Section 10 hereof, the issuance of the Preferred Stock upon
exercise of this Warrant will constitute a transaction exempt from (i) the
registration requirements of Section 5 of the 1933 Act in reliance upon Section
4(2) thereof, and (ii) the qualification requirements of the California
Corporate Securities Law, in reliance upon Section 25102(f) thereof.
(h) Compliance with Rule 144. At the written request of the Warrantholder,
who proposes to sell Preferred Stock issuable upon the exercise of the Warrant
in compliance with Rule 144 promulgated by the Securities and Exchange
Commission, the Company shall furnish to the Warrantholder, within ten days
after receipt of such request, a written statement confirming the Company's
compliance with the filing requirements of the Securities and Exchange
Commission as set forth in such Rule, as such Rule may be amended from time to
time.
10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Warrant Agreement has been entered into by the Company in reliance
upon the following representations and covenants of the Warrantholder:
(a) Investment Purpose. The right to acquire Preferred Stock or the
Preferred Stock issuable upon exercise of the Warrantholder's rights contained
herein will be acquired for investment and not with a view to the sale or
distribution of any part thereof, and the Warrantholder has no present intention
of selling or engaging in any public distribution of the same except pursuant to
a registration or exemption.
(b) Private Issue. The Warrantholder understands (i) that the Preferred
Stock issuable upon exercise of this Warrant is not registered under the 1933
Act or qualified under applicable state securities laws on the ground that the
issuance contemplated by this Warrant Agreement will be exempt from the
registration and qualifications requirements thereof, and (ii) that the
Company's reliance on such exemption is predicated on the representations set
forth in this Section 10.
(c) Disposition of Warrantholder's Rights. In no event will the
Warrantholder make a disposition of any of its rights to acquire Preferred Stock
or Preferred stock issuable upon exercise of such rights unless and until (i) it
shall have notified the Company of the proposed disposition, and (ii) if
requested by the Company, it shall have furnished the Company with an opinion of
counsel (which counsel may either be inside or outside counsel to the
Warrantholder) satisfactory to the Company and its counsel to the effect that
(A) appropriate action necessary for compliance with the 1933 Act has been
taken, or (B) an exemption from the registration
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requirements of the 1933 Act is available. Notwithstanding the foregoing, the
restrictions imposed upon the transferability of any of its rights to acquire
Preferred Stock or Preferred Stock issuable on the exercise of such rights do
not apply to transfers from the beneficial owner of any of the aforementioned
securities to its nominee or from such nominee to its beneficial owner, and
shall terminate as to any particular share of Preferred Stock when (1) such
security shall have been effectively registered under the 1993 Act and sold by
the holder thereof in accordance with such registration or (2) such security
shall have been sold without registration in compliance with Rule 144 under the
1933 Act, or (3) a letter shall have been issued to the Warrantholder at its
request by the staff of the Securities and Exchange Commission stating that no
action shall be recommended by such staff or taken by such Commission, as the
case may be, if such security is transferred without registration under the 1933
Act in accordance with the conditions set forth in such letter or ruling and
such letter or ruling specifies that no subsequent restrictions on transfer are
required. Whenever the restrictions imposed hereunder shall terminate, as
hereinabove provided, the Warrantholder or holder of a share of Preferred Stock
then outstanding as to which such restrictions have terminated shall be entitled
to receive from the Company, without expense to such holder, one or more new
certificates for the Warrant or for such shares of Preferred Stock not bearing
any restrictive legend.
Notwithstanding anything to the contrary contained herein:
(i) The Warrantholder shall not sell or transfer or agree to sell or
transfer any rights to acquire shares of stock of the Company or any shares of
stock of the Company (collectively, the "Offered Shares"), unless in each case
the Warrantholder shall have first complied with this Section 10(c). The
Warrantholder shall deliver to the Company a written notice of any proposed or
intended sale of Offered Shares (the "Offer"), which Offer shall (a) identify
the Offered Shares, (b) describe the price and other terms upon which they are
to be sold or transferred, and the number or amount of the Offered Shares to be
sold or transferred, and (c) offer to sell to the Company all (but not less than
all) such Offered Shares. The Company shall have the right, for a period of five
(5) days following delivery of the Offer, to purchase or acquire, at a price and
upon the other terms specified in the Offer, any and all Offered Shares
described above. The Offer by its term shall remain open and irrevocable for
such 5-day period.
(ii) To accept an Offer, the Company must deliver a written notice to
the Warrantholder prior to the end of the 5-day period of the Offer (the "Notice
of Acceptance"). If the Company does not accept the Offer, the Warrantholder may
sell the Offered Shares on the terms and conditions set forth in the Offer for a
period of forty-five (45) days following the end of the 5-day period of the
Offer.
(iii) Any Offered Shares not acquired by the Company or other persons
in accordance with this Section 10(c) may not be issued, sold or exchanged until
they are again offered to the Company under the procedures specified in this
Agreement.
(iv) The provisions of this Section 10(c) shall terminate upon the
closing of the Company's initial public offering of shares of Common Stock
pursuant to an effective registration statement under the Securities Act.
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(d) Financial Risk. The Warrantholder has such knowledge and experience in
financial and business matters and in investing in companies similar to the
Company as to be capable of evaluating the merits and risks of its investment,
and has the ability to bear the economic risks of its investment.
(e) Authority. The Warrantholder has full power and authority to enter
into and to perform this Agreement in accordance with its terms. The
Warrantholder has not been organized, reorganized or recapitalized specifically
for the purpose of investing in the Company.
(f) Risk of No Registration. The Warrantholder understands that if the
Company does not register with the Securities and Exchange Commission pursuant
to Section 12 of the 1933 Act or file reports pursuant to Section 15(d), of the
Securities Exchange Act of 1934 (the "1934 Act"), or if a registration statement
covering the securities under the 1933 Act is not in effect when it desires to
sell (i) the rights to purchase Preferred Stock pursuant to this Warrant
Agreement, or (ii) the Preferred Stock issuable upon exercise of the right to
purchase, it may be required to hold such securities for an indefinite period.
The Warrantholder also understands that any sale of its rights of the
Warrantholder to purchase Preferred Stock or Preferred Stock which might be made
by it in reliance upon Rule 144 under the 1933 Act may be made only in
accordance with the terms and conditions of that Rule.
11. TRANSFERS.
(a) Subject to the terms and conditions contained in Section 10 hereof,
this Warrant Agreement and all rights hereunder are transferable in whole or in
part by the Warrantholder and any successor transferee, provided, however, in no
event shall the number of transfers of the rights and interests in all of the
Warrants exceed three (3) transfers. The transfers shall be recorded on the
books of the Company upon receipt by the Company of a notice of transfer in the
form attached hereto as Exhibit II (the "Transfer Notice"), at its principal
offices and the payment to the Company of all transfer taxes and other
governmental charges imposed on such transfer.
(b) Legends. Each certificate or agreement representing rights to acquire
shares of Preferred Stock, Preferred Stock issuable upon the exercise of such
rights or shares of Common Stock issuable upon the conversion of the Preferred
Stock shall bear a legend substantially in the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act, or an opinion of counsel satisfactory to the Company is
obtained to the effect that such registration is not required."
The foregoing legend shall be removed from the certificates representing
any Restricted Shares, at the request of the holder thereof, at such time as
they become eligible for resale pursuant to Rule 144 under the Securities Act.
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(c) If any of the provisions set forth in this Agreement are violated, the
Company shall not be required (i) to transfer on its books any of the rights to
acquire shares of Preferred Stock, Preferred Stock issuable upon the exercise of
such rights or shares of Common Stock issuable upon the conversion of the
Preferred Stock, or (ii) to treat as owner of such rights to acquire shares of
Preferred Stock, Preferred Stock issuable upon the exercise of such rights or
shares of Common Stock issuable upon the conversion of the Preferred Stock or to
pay dividends to any transferee to whom any such rights to acquire shares of
Preferred Stock, Preferred Stock issuable upon the exercise of such rights or
shares of Common Stock issuable upon the exercise of such rights or shares of
Common Stock issuable upon the conversion of the Preferred Stock shall have been
so sold or transferred.
12. MISCELLANEOUS.
(a) Effective Date. The provisions of this Warrant Agreement shall be
construed and shall be given effect in all respects as if it had been executed
and delivered by the Company on the date hereof. This Warrant Agreement shall be
binding upon any successors or assigns of the Company.
(b) Attorney's Fees. In any litigation, arbitration or court proceeding
between the Company and the Warrantholder relating hereto, the prevailing party
shall be entitled to attorneys' fees and expenses and all costs of proceedings
incurred in enforcing this Warrant Agreement.
(c) Governing Law. This Warrant Agreement shall be governed by and
construed for all purposes under and in accordance with the laws of the State of
California.
(d) Counterparts. This Warrant Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery, facsimile
transmission (provided that the original is sent by personal delivery or mad as
hereinafter set forth) or seven (7) days after deposit in the United States
mail, by registered or certified mail, addressed (i) to the Warrantholder at 000
Xxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 with a copy to Xxxxxxx X.
Xxxxxx, Esq., c/o Cooley, Godward, Xxxxxx, Xxxxxxxxx & Taturn, Five Palo Alto
Square, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, XX 00000-0000 and (ii) to the Company
c/o Greylock Management Corporation, Xxx Xxxxxxx Xxxxxx, Xxxxxx, XX 00000,
(and/or if by facsimile, (000) 000-0000) or at such other address as any such
party may subsequently designate by written notice to the other party.
(f) Remedies. In the event of any default hereunder, the non-defaulting
party may proceed to protect and enforce its rights either by suit in equity
and/or by action at law, including but not limited to an action for damages as a
result of any such default, and/or an action for specific performance for any
default where Warrantholder will not have an adequate remedy at law and where
damages will not be readily ascertainable.
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(g) No Impairment of Rights. The Company will not by amendment of its
Charter or through any other means, 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 in order to protect the rights of the
Warrantholder against impairment. Any and all costs incurred by the Company in
assisting the Warrantholder in the protection of the Warrantholder's rights
shall be paid for, or reimbursed, by the Warrantholder.
(h) Survival. The representations. warranties, covenants and conditions of
the respective parties contained herein or made pursuant to this Warrant
Agreement shall survive the execution and delivery of this Warrant Agreement.
(i) Severability. In the event any one or more of the provisions of this
Warrant Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Warrant Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be replace
by a mutually acceptable valid, legal and enforceable provision, which comes
closest to the intention of the parties underlying the invalid, illegal or
unenforceable provision.
(j) Amendments. Any provision of this Warrant Agreement may be amended by
a written instrument signed by the Company and by the Warrantholder.
(k) Additional Documents. The Company, upon execution of this Warrant
Agreement, shall provide the Warrantholder with certified resolutions with
respect to the representations, warranties and covenants set forth in
subparagraphs (a) through (d), (f) and (g) of Section 9 above. The Company shall
also supply such other documents as the Warrantholder may from time to time
reasonably request.
IN WITNESS WHEREOF, the parties hereto have cause this Warrant Agreement to
be executed by its officers thereunto duly authorized as of the Effective Date.
Company:
ONTOGENY, INC.
By:___________________________
Title:President
------------------------
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Warrantholder.
Lighthouse Capital Partners, L.P.
By: Lighthouse Management Partners,
L.P., its general partner
By: Lighthouse Capital Partners, Inc.,
its general partner
By: ________________________
Title: _____________________
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EXHIBIT I
NOTICE OF EXERCISE
To: ______________________
(1) The undersigned Warrantholder hereby elects to purchase ___________shares
of the Preferred Stock of pursuant to the terms of the Warrant Agreement
dated the ______ day of 19_ (the "Warrant Agreement") between
_____________________________ and the Warrantholder, and tenders herewith
payment of the purchase price for such shares in full.
(2) In exercising its rights to purchase the Preferred Stock of
___________________ the undersigned hereby confirms and acknowledges the
investment representations and warranties made in Section 10 of the Warrant
Agreement.
(3) Please issue a certificate or certificates representing said shares of
Preferred stock in the name of the undersigned or in such other name as is
specified below.
____________________________
(Name)
_____________________________
(Address)
Warrantholder:
By:__________________________
Title:_______________________
Date:________________________
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ACKNOWLEDGMENT OF EXERCISE
The undersigned _______________, hereby acknowledge receipt of the "Notice
of Exercise" from _________________ to purchase ________shares of the Preferred
stock of _______________________________pursuant to the terms of the Warrant
Agreement, and further acknowledges that _____ shares remain subject to purchase
under the terms of the Warrant Agreement.
Company:
By: ____________________________
Title: _________________________
Date: __________________________
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NET ISSUE ELECTION NOTICE
To: _______________________________ Date:______________________
The undersigned hereby elects under Section 3 to surrender the right to
purchase _________ shares of Preferred Stock pursuant to this Warrant Agreement.
The certificate(s) for such shares issuable upon such net issue election shall
be issued in the name of the undersigned or as otherwise indicated below:
_________________________________
Signature
_________________________________
Name for Registration
_________________________________
Mailing Address
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EXHIBIT II
TRANSFER NOTICE
(To transfer or assign the foregoing Warrant Agreement execute this form
and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant Agreement and all rights
evidenced thereby are hereby transferred and assigned to
__________________________
(Please Print)
whose address is _________________________________________________________
Dated:___________________________________________
Holder's Signature:______________________________
Holder's Address:________________________________
_________________________________________________
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EXHIBIT III
Copy of the Certificate of Incorporation
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