EXHIBIT 4.6
NEITHER THIS WARRANT NOR ANY SECURITIES THAT MAY BE ISSUED UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THIS WARRANT AND ANY
SUCH SECURITIES MAY NOT BE TRANSFERRED UNLESS SO REGISTERED AND QUALIFIED UNDER
ALL APPLICABLE SECURITIES LAWS, OR UNLESS THE HOLDER DEMONSTRATES TO THE
ISSUER'S SATISFACTION THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
STOCK PURCHASE WARRANT
Issued To
ALPINVEST INTERNATIONAL B.V.
August 14, 2000
This Stock Purchase Warrant (the "Warrant") is one of several Stock
Purchase Warrants in similar form being issued by EpiCept Corporation, a
Delaware corporation (the "Company"), on or about the date hereof (the
"Warrants") in connection with the issuance by the Company on or about the date
hereof to the initial registered holders of the Warrants of convertible term
notes in the aggregate principal amount of $1,000,000 (the "Convertible Term
Notes").
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company hereby certifies that, subject to the terms and
conditions set forth herein, Alpinvest International B.V., or any subsequent
registered holder of this Warrant, is entitled to purchase from the Company at
any time or from time to time before 5:00 p.m. (New Jersey time) on August 15,
2010, such number of fully paid and nonassessable shares of the such class of
the Company's preferred stock for such purchase price per share as shall be
determined in accordance with Section 1(a) of this Warrant, subject to
adjustments as set forth in Sections 4 and 6.
1. EXERCISE OF WARRANT.
(a) CLASS OF PREFERRED STOCK, EXERCISE PRICE, NUMBER OF SHARES.
(i) In the event that the Company consummates a Qualifying Financing
(as defined in the Convertible Term Notes) on or before November 15, 2000,
then the class of the Company's preferred stock for which this Warrant
shall initially be exercisable shall be the Next Round Preferred Stock (as
defined in the Convertible Term Notes), the purchase price per share of
Next Round Preferred Stock shall be the lowest price per share paid by any
purchaser in the Qualifying Financing, and the total number of shares of
Next Round Preferred Stock issuable under this Warrant shall be calculated
as follows:
N = $140,000/E
E = the lowest price per share paid by any purchaser in the Qualifying
Financing
(ii) In the event that the Company does not consummate a Qualifying
Financing (as defined in the Convertible Term Notes) on or before November
15, 2000, then the class of the Company's preferred stock for which this
Warrant shall initially be exercisable shall be the Company's Series B
Convertible Preferred Stock, $.01 par value per share ("Series B Preferred
Stock"), the purchase price per share of Series B Preferred Stock shall be
$1.50 per share, and the total number of shares of Series B Preferred
Stock issuable under this Warrant shall be 93,333.
(iii) The class of the Company's preferred stock initially issuable
hereunder is hereinafter referred to as the "Preferred Stock" and the
purchase price per share of Preferred Stock payable hereunder is
hereinafter referred to as the "Exercise Price."
(b) 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 3 hereof.
(c) WARRANT REGISTER. The Company shall maintain at its office (or at such
other office or agency of the Company as it may from time to time designate in
writing to the Warrantholder), a register containing the name and address of the
holder of this Warrant. The registered holder of this Warrant shall be the
person in whose name this Warrant is originally issued and registered, unless a
subsequent holder shall have presented to the Company the Warrant, duly assigned
to him, for inspection, and a written notice of his acquisition of the Warrant
and designating in writing the address of such holder, in which ease such
subsequent holder of the Warrant shall become a subsequent registered holder,
and a Warrantholder as defined herein. Any Warrantholder may change his address
as shown on such register by written notice to the Company requesting such
change. Any written notice required or permitted to be given to any
Warrantholder shall be delivered in person or duly sent by first class mail
postage prepaid (other than in the case of notices to non-U.S. residents) or fax
or DHL, Federal Express or other recognized express international courier
service, addressed to such Warrantholder at his address as shown on such
register.
(d) 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.
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(e) EXPIRATION. This Warrant and the registered holder's rights hereunder
will expire as of 5:00 P.M. (New Jersey time) on August 15, 2010. Upon and after
the Automatic Conversion Effective Time (as defined in Section 6), the right to
purchase shares of Preferred Stock granted herein shall terminate, and this
Warrant shall represent the right to purchase shares of the Common Stock, par
value $0.01 per share, of the Company ("Common Stock") as provided in Section 6
hereof.
2. DELIVERY OF CERTIFICATES; FRACTIONAL SHARES.
(a) 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 exercise, together, in the case of any
partial exercise, with a new Warrant representing the unexercised portion
hereof.
(b) FRACTIONAL SHARES. In the event that any exercise of this Warrant
would, but for the provisions of this Section 2(b), result in the issuance of
any fractional share of capital stock, then in lieu of such fractional share the
registered holder hereof will be entitled to cash equal to the fair market value
of such fractional share, as determined in good faith by the Company's Board of
Directors,
3. PAYMENT OF EXERCISE PRICE. The Exercise Price may be paid at the
holder's election either by cash, certified or official bank check payable to
the order of the Company, or wire transfer to its account, or by the net
issuance method as described below:
(a) Prior to the Automatic Conversion Effective Time (as defined in
Section 6), the Company shall issue Preferred Stock under the net issuance
method in accordance with the following formula:
X = (Y)(A-B)/A
Where: X = the number of shares of Common Stock to be issued to the holder
Y = the number of shares of Common Stock 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, the current fair market value of a share of Preferred
Stock shall mean the price per share which the Company could obtain from a
willing buyer for shares of Preferred 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
Preferred Stock receive securities and/or other property in exchange for their
Preferred Stock, in which case the fair market value of Preferred
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Stock shall be deemed to be the value of the securities and other property
received by the holders of the Preferred Stock per share of Preferred Stock
pursuant to such merger, consolidation or other acquisition.
(b) Upon and after the Automatic Conversion Effective Time, the Company
shall issue Common Stock under the net issuance method in accordance with the
following formula:
X = (Y)(A-B)/A
Where: X = the number of shares of Common Stock to be issued to the holder
Y = the number of shares of Common Stock 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 issued herein, current fair market value of Common Stock shall mean
with respect to each share of Common Stock:
(i) 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 SEC, then the initial "Price to Public" specified in the final
prospectus with respect to the offering;
(ii) if this Warrant is exercised after, and not in connection with,
the Company's initial public offering of Common Stock and
(A) 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 twenty-one (21)
day period ending three days before the day the current fair market value
of the Common Stock is being determined; or
(B) 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 twenty-one (21) day period ending
three days before the day the current fair market value of the Common
Stock is being determined;
(iii) 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 or 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
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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.
4. ADJUSTMENT FOR REORGANIZATIONS, CONSOLIDATIONS, MERGERS, ETC.
(a) CERTAIN ADJUSTMENTS.
(i) In case at any time or from time to time prior to the exercise
of the Warrant but before the Automatic Conversion Effective Time, the
Company effects an "Extraordinary Preferred Stock Event" (as hereafter
defined), then in each such case, (A) the number of shares of Preferred
Stock purchasable hereunder shall be adjusted to the number obtained by
multiplying the number of shares of Preferred Stock purchasable hereunder
immediately before such Extraordinary Preferred Stock Event by a fraction,
the numerator of which shall be the number of shares of Preferred Stock
outstanding (excluding treasury stock) immediately after such
Extraordinary Preferred Stock Event and the denominator of which shall be
the number of shares of Preferred Stock outstanding (excluding treasury
stock) immediately before such Extraordinary Preferred 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 Preferred Stock Event by a fraction, the numerator of which
shall be the number of shares of Preferred Stock outstanding (excluding
treasury stock) immediately before such Extraordinary Preferred Stock
Event and the denominator of which shall be the number of shares of
Preferred Stock outstanding (excluding treasury stock) immediately after
such Extraordinary Preferred Stock Event, in each case subject to further
adjustment thereafter as provided herein. The term "Extraordinary
Preferred Stock Event" shall mean (x) the issuance of additional shares of
Preferred Stock as a dividend or other distribution on outstanding
Preferred Stock, (y) the subdivision of outstanding shares of Preferred
Stock into a greater number of shares of Preferred Stock, or (z) the
combination of outstanding shares of Preferred Stock into a smaller number
of shares of Preferred Stock.
(ii) In case at any time or from time to time prior to the exercise
of the 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
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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 shares of Common Stock, or (z) the
combination of outstanding shares of Common Stock into a smaller number of
shares of Common Stock.
(iii) In case at any time or from time to time prior to the exercise
of the Warrant, the Company (A) effects a capital reorganization,
reclassification, or recapitalization, (B) consolidates with or merges
with or into any other person or entity, or (C) transfers all or
substantially all of its properties or assets to any other person or
entity under any plan or arrangement contemplating the dissolution of the
Company, 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 or the effective date of such dissolution, 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
maybe, 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 the Warrant after the
effective date of such dissolution pursuant to this Section 4 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. Upon any reorganization, consolidation, merger
or transfer (and any dissolution following any transfer) referred to in this
Section 4, 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 or the effective date of
dissolution following any such transfer, as the case may be, and will be binding
upon the issuer of any such stock or other securities, including, in the case of
any such transfer the person or entity acquiring all or substantially all of the
properties
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or assets of the Company, whether or not such person or entity expressly assumes
the Company's obligations under this Warrant as provided in Section 5 hereof.
5. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
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 dissolution. Without limiting the generality of the foregoing,
the Company (i) 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
and (ii) will not transfer all or substantially all of its properties and assets
to any other person or entity or consolidate into or merge with or into any
other person or entity (if the Company is not the surviving entity), unless such
other person or entity expressly agrees in writing (naming the registered holder
hereof, as such, as an intended third-party beneficiary) to assume and satisfy
all of the Company's obligations under this Warrant
6. AUTOMATIC CONVERSION OF THE PREFERRED STOCK. If at any time the issued
and outstanding shares of the Preferred Stock shall be automatically converted
into shares of Common Stock under the terms of the Company's Certificate of
Incorporation as amended from time to time (the "Certificate of Incorporation"),
then upon and after the effective time of such automatic conversion of the
Preferred Stock (the "Automatic Conversion Effective Time"), the right to
purchase Preferred Stock granted herein shall terminate, and this Warrant shall
represent the right to purchase a number of shares of Common Stock calculated as
follows:
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 Preferred 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 Preferred Stock
immediately prior to such Automatic Conversion
Effective Time
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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 Preferred Stock
immediately prior to such Automatic Conversion
Effective Time
X = the number of shares of Preferred 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 4 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; or
(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 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
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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
thirty 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 this 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. 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.
11. 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.
12. 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 bolder 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.
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13. 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).
Executed and delivered under seal on and as of the date first above
written.
EPICEPT CORPORATION
By: /s/ Xxxxx Xxxxxxx
-----------------------
President
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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 Preferred Stock
and herewith makes payment of $___________ therefor.
The undersigned hereby elects to exercise this Warrant by the net issuance
method described in Section 3 of this Warrant and to receive ___ shares of
Preferred Stock.
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
