THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES
UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
Right to Purchase Shares of Class A
Common Stock of American Biogenetic
Sciences, Inc.
No. WA1 May 20, 1998
------------------------
Common Stock Purchase Warrant
American Biogenetic Sciences, Inc., a Delaware corporation having an
address at 0000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Company"), hereby
certifies that for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, [_____________] having an address at
[______________________________] ("Purchaser") or any other Warrant Holder (as
defined herein) is entitled, on the terms and conditions set forth below, to
purchase from the Company at any time after the date hereof and ending at the
Expiration Time [___________________________] ([ ]) fully paid and nonassessable
shares of Class A Common Stock, $.001 par value, of the Company together with
any associated Common Stock Purchase Rights (the "Common Stock") at the Purchase
Price (hereinafter defined), as such number of shares and Purchase Price may be
adjusted pursuant to Section 5 herein.
1. Definitions.
(a) the term "Expiration Time" shall mean 5:00 p.m. New York
Time on May 19, 2002.
(b) the term "Fair Market Value" shall mean the closing
trading price of the Common Stock on the NASDAQ Stock Market, the American Stock
Exchange or the New York Stock Exchange, whichever is the principal trading
exchange or market for the Common Stock (the "Principal Market") on the date of
determination (or if not traded on such date, on the last trading date on which
traded prior to such date) or, if the Common Stock is not listed or admitted to
trading on any national securities exchange or quoted in the NASDAQ Stock Market
on a basis for which closing price information is available, the average of the
closing bid and asked prices as furnished by any New York Stock Exchange member
firm reasonably selected from time to time by the Company for that purpose, or,
if the Common Stock is not listed or admitted to trading on any national
securities exchange or quoted on the NASDAQ Stock market or traded
over-the-counter and the average price cannot be determined as contemplated
above, the fair market value of the Common Stock shall be as reasonably
determined in good faith by the Company's Board of Directors.
(c) the term "Warrant Holder" shall mean the Purchaser or
any assignee of all or any portion of this Warrant at any given time.
(d) the term "Warrant Shares" shall mean the shares of
Common Stock or other securities issuable upon exercise of this Warrant.
(e) the term "Purchase Price" shall mean $1.9141.
(f) other terms used herein which are defined in the
Securities Subscription Agreement dated as of the date hereof (the "Agreement")
or the Registration Rights Agreement dated as of the date hereof (the
"Registration Rights Agreement"), or in the Debentures issued by the Company to
the Purchaser pursuant to the Agreement (the "Debentures"), shall have the same
meanings herein as therein. In the event of a conflict in any such definition,
the definitions shall be applied in the following order: first, the Debentures;
second, the Agreement; and third, the Registration Rights Agreement.
2. Exercise of Warrant.
This Warrant may be exercised by Warrant Holder, in whole or
in part, at any time and from time to time, on or after the date hereof until
the Expiration Time by surrender of this Warrant, together with the Purchase
Price and form of subscription at the end hereof duly executed by Warrant
Holder, to the Company at its principal office. In the event that the Warrant is
not exercised in full, the number of Warrant Shares shall be reduced by the
number of Warrant Shares for which this Warrant is exercised and the Company, at
its expense, shall forthwith issue and deliver to or upon the order of Warrant
Holder a new Warrant of like tenor in the name of Warrant Holder or as Warrant
Holder (upon payment by Warrant Holder of any applicable transfer taxes) may
request, reflecting the Warrant Shares remaining subject to this Warrant. In the
event of an adjustment to the Warrant Shares or Purchase Price pursuant to
Section 5 hereof, this Warrant (including any replacement Warrants) may still
reflect on its face the Warrant Shares and Purchase Price as if no such
adjustments had been made (but such adjustments shall nevertheless remain
effective).
3. Delivery of Stock Certificates.
(a) Subject to the terms and conditions of this Warrant, as
soon as practicable after the exercise of this Warrant in full or in part, and
in any event within three (3) trading days thereafter, the Company at its
expense (including, without limitation, the payment by it of any applicable
issue taxes) will cause to be issued in the name of and delivered to Warrant
Holder, or as Warrant Holder (upon payment by Warrant Holder of any applicable
transfer taxes) may lawfully direct, a certificate or certificates for the
number of fully paid and non-assessable shares of Common Stock to which Warrant
Holder shall be entitled on such exercise, together with any other stock or
other securities or property (including cash, where applicable) to which Warrant
Holder is entitled upon such exercise. Any shares issued hereunder shall, at the
request of Warrant Holder and if available to the Company, be delivered by the
Company to the Warrant Holder in an electronic format (e.g. via DWAC).
-2-
(b) This Warrant may not be exercised as to fractional
shares of Common Stock. In the event that the exercise of this Warrant, in full
or in part, would result in the issuance of any fractional share of Common
Stock, then, in lieu of such fractional share, Warrant Holder shall be entitled
to cash equal to the Fair Market Value of such fractional share on the date of
the exercise of the Warrant.
4. Covenants of the Company.
(a) The Company shall use its reasonable best efforts to
insure that a Registration Statement under the Act covering the resale or other
disposition of the Warrant Shares by Warrant Holder is effective as provided in
the Registration Rights Agreement.
(b) The Company shall take all necessary actions and
proceedings as may be required and permitted by applicable law, rule and
regulation, including, without limitation the notification of NASDAQ, for the
legal and valid issuance of this Warrant and the Warrant Shares to the Warrant
Holder under this Warrant.
(c) From the date hereof through the last date on which this
Warrant is exercisable, the Company shall take all steps reasonably necessary
and within its control to insure that the Common Stock remains listed on a
Principal Market and shall not amend its Certificate of Incorporation or Bylaws
so as to constitute a breach of the Company's obligations hereunder.
(d) The Company shall at all times reserve and keep
available, solely for issuance and delivery of Warrant Shares hereunder, such
shares of Common Stock as shall from time to time be issuable as Warrant Shares.
(e) The Warrant Shares, when issued in accordance with the
terms hereof, will be duly authorized and, when paid for and issued in
accordance with the terms hereof, shall be validly issued, fully paid and
non-assessable. The Company has authorized and reserved for issuance to Warrant
Holder the requisite number of shares of Common Stock to be issued pursuant to
this Warrant.
(f) With a view to making available to Warrant Holder the
benefits of Rule 144 promulgated under the Act ("Rule 144") and any other rule
or regulation of the SEC that may at any time permit Warrant Holder to sell
Warrant Shares of the Company to the public without registration, the Company
agrees to use its reasonable best efforts to:
(i) make and keep public information available, as
those terms are understood and defined in Rule 144, at all times;
(ii) file with the SEC in a timely manner all reports
and other documents required of the Company under the Act and the Exchange Act;
and
(iii) furnish to any Warrant Holder, forthwith upon
request, a written statement by the Company (provided true at the time) that it
has complied with the applicable reporting
-3-
and filing requirements of the Act and the Exchange Act, a copy of the most
recent annual or quarterly report of the Company, and such other reports and
documents so filed by the Company as may be reasonably requested to permit any
such Warrant Holder to take advantage of any rule or regulation of the SEC
permitting the selling of any such securities without registration.
5. Adjustment of Exercise Price and Number of Shares.
The number of, and kind of, securities purchasable upon
exercise of this Warrant and the Purchase Price shall be subject to adjustment
from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances. If the
Company shall at any time after the date hereof but prior to the expiration of
this Warrant subdivide or otherwise increase its outstanding securities as to
which purchase rights under this Warrant exist, by split-up, dividend, or
similar subdivision, or combine its outstanding securities as to which purchase
rights under this Warrant exist, the number of Warrant Shares as to which this
Warrant is exercisable as of the date of such subdivision or combination shall,
on the record date therefor, be proportionately increased in the case of a
subdivision, or proportionately decreased in the case of a combination; however
should this Warrant be exercised prior to the distribution date related to such
subdivision, the additional Warrant Shares shall be delivered to the Warrant
Holder on such distribution date. Appropriate adjustments shall also be made to
the Purchase Price payable per share, but the aggregate Purchase Price payable
for the total number of Warrant Shares purchasable under this Warrant as of such
date shall remain the same.
(b) Other Distributions. If at any time after the date
hereof the Company distributes to holders of its Common Stock, other than as
part of its dissolution, liquidation or the winding up of its affairs, any
shares of its capital stock, any securities or rights convertible into Common
Stock ("Common Stock Equivalents"), any evidence of indebtedness or any of its
assets (other than cash or Common Stock) whether by spin-off or otherwise, then
the number of shares of Common Stock for which this Warrant may be exercised
shall be increased as of the record date (or the date of such dividend
distribution if no record date is set) for determining which holders of Common
Stock shall be entitled to receive such dividends, in proportion to the increase
in the number of outstanding shares (and shares of Common Stock issuable upon
conversion of all such Common Stock Equivalents) of Common Stock as a result of
such dividend, and the Purchase Price shall be adjusted so that the aggregate
amount payable for the purchase of all the Warrant Shares issuable hereunder
immediately after the record date (or on the date of such distribution, if
applicable) for such dividend shall equal the aggregate amount so payable
immediately before such record date (or on the date of such distribution, if
applicable); however should this Warrant be exercised prior to the distribution
date related to such subdivision, the additional Warrant Shares shall be
delivered to the Warrant Holder on such distribution date.
(c) Merger, etc. If at any time after the date hereof there
shall be a merger or consolidation of the Company with or into another entity
(with stockholders of the Company immediately prior to such merger or
consolidation owning in the aggregate less than 50% of the voting power of the
ultimate parent corporation or other entity surviving or resulting from such
merger or consolidation) or a transfer of all or substantially all of the assets
of the Company to another entity, then the Warrant Holder
-4-
shall be entitled to receive upon exercise of this Warrant prior to such
transfer, merger or consolidation becoming effective, and upon payment of the
aggregate Purchase Price then in effect, the number of shares or other
securities or property of the company or of the successor corporation resulting
from such merger or consolidation, which would have been received by Warrant
Holder for the shares of stock subject to this Warrant had this Warrant been
exercised just prior to such transfer, merger or consolidation becoming
effective or to the applicable record date thereof, as the case may be.
(d) Reclassification, Etc. If at any time after the date
hereof there shall be a reorganization or reclassification of the securities as
to which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes (other than pursuant to
clauses (a) - (c) of this Section 5) then the Warrant Holder shall thereafter be
entitled to receive upon exercise of this Warrant, during the period specified
herein and upon payment of the Purchase Price then in effect, the number of
shares or other securities or property resulting from such reorganization or
reclassification which would have been received by the Warrant Holder for the
shares of stock subject to this Warrant had this Warrant been exercised just
prior to such reorganization or reclassification.
(e) Purchase Price Adjustment. In the event that the Company
issues or sells any (i) Common Stock or (ii) any warrants or other rights to
subscribe for or to purchase, or any options for the purchase of, its Common
Stock or any such Common Stock Equivalents (other than (v) issuance of the
Debentures or the Warrants or Warrants of like tenor issued in connection with
the issuance of the Debentures or of shares of Common Stock upon conversion or
exercise thereof, (w) securities issued or which may be issued pursuant to
Company employee, officer, director or consultant stock or option or similar
equity-based compensation plans now or hereafter established, (x) contingent
shares which may be issued by the Company pursuant to its agreement under which
it acquired Stellar Bio Systems, Inc., (y) securities issued in connection with
business acquisitions, joint ventures, licensing arrangements and other
non-capital raising purposes or (z) shares issued upon exercise of Common Stock
Equivalents, options, warrants or rights outstanding on the date of the
Agreement and reflected in the Exchange Act Reports) at an effective purchase
price per share which is less than the Purchase Price then in effect, then in
such case, the Purchase Price in effect immediately prior to such issue or sale
shall be reduced effective concurrently with such issue or sale to an amount
determined by multiplying the Purchase Price then in effect by a fraction, (x)
the numerator of which shall be the sum of (1) the number of shares of Common
Stock outstanding immediately prior to such issue or sale, including, without
duplication, those shares then issuable pursuant to any provision of the
Debentures and the Warrants plus (2) the number of shares of Common Stock which
the aggregate consideration received by the Company for such additional shares
would purchase at such Purchase Price and (y) the denominator of which shall be
the number of shares of Common Stock of the Company outstanding immediately
after such issue or sale including, without duplication, those shares then
issuable pursuant to any provision of the Debentures and Warrants.
The number of shares which may be purchased hereunder shall be
increased proportionately to any reduction in Purchase Price pursuant to this
Section 5(e), so that after such adjustments the aggregate Purchase Price
payable hereunder for the increased number of shares shall be the same as the
aggregate Purchase Price in effect just prior to such adjustments.
-5-
(g) If any Common Stock Equivalents, warrants, options or
other rights for which an adjustment of Purchase Price or Warrant Shares or
other consideration issuable upon exercise of this Warrant shall expire
unconverted or unexercised prior to the exercise of this Warrant, the Purchase
Price and number of Warrant Shares or other consideration issuable upon exercise
of this Warrant shall immediately be re-adjusted as if such Common Stock
Equivalents had never been issued.
(h) No adjustment in the Purchase Price shall be required by
Section 5 unless such adjustment would require an increase of at least one (1)
cent; provided, however, that any adjustment which is not, by reason of this
Section 5(h), required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under Section 5 shall be
made to the nearest one-hundredth of a cent or share.
6. No 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 voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be reasonably necessary
or appropriate in order to protect the rights of the Warrant Holder against
impairment. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any Warrant Shares above the amount payable
therefor on such exercise, and (b) will take all such action as may be
reasonably necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares on the exercise of
this Warrant.
7. Notice of Adjustments; Notices.
Whenever the Purchase Price or number of shares purchasable
hereunder shall be adjusted pursuant to Section 5 hereof, the Company shall
execute and deliver to the Warrant Holder a certificate setting forth, in
reasonable detail, the event requiring the adjustment, the method by which such
adjustment was calculated and the Purchase Price and number of shares
purchasable hereunder after giving effect to such adjustment, and shall cause a
copy of such certificate to be mailed (by first class mail, postage prepaid) to
the Warrant Holder.
-6-
8. Rights As Stockholder.
Prior to exercise of this Warrant, the Warrant Holder shall
not be entitled to any rights as a stockholder of the Company with respect to
the Warrant Shares, including (without limitation) the right to vote such
shares, receive dividends or other distributions thereon or be notified of
stockholder meetings. However, in the event of any 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 (other than a cash
dividend) or other distribution, 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, the Company shall mail to each Warrant
Holder, at least 10 days prior to the date specified therein for such record or
distribution date, a notice specifying the date on which any such record is to
be taken for (or, if no record date is to be taken therefor, the distribution
date thereof) the purpose of such dividend, distribution or right, and the
amount and character of such dividend, distribution or right.
9. Replacement of Warrant.
On receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of the Warrant and, in the case of
any such loss, theft or destruction of the Warrant, on delivery of an indemnity
agreement or security reasonably satisfactory in form and amount to the Company
or, in the case of any such mutilation, on surrender and cancellation of such
Warrant, the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant of like tenor.
10. Specific Enforcement; Consent to Jurisdiction; Waiver of Jury
Trial.
(a) The Company and the Warrant Holder acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Warrant were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Warrant and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which either of them may be entitled by
law or equity.
(b) Each of the Company and the Warrant Holder hereby (i)
agree that all actions or proceedings arising directly or indirectly from or in
connection with this Warrant shall be litigated only in the Supreme Court of the
State of New York or the United States District Court for the Southern District
of New York located in New York County, New York and (ii) consent to the
jurisdiction and venue of the foregoing courts and consent that any process or
notice of motion or other application to either of said courts or a judge
thereof may be served inside or outside the State of New York or the Southern
District of New York by registered mail, return receipt requested, directed to
the such party at its address set forth in this Warrant (and service so made
shall be deemed complete five (5) days after the same has been posted as
aforesaid) or by personal service or in such other manner as may be permissible
under the rules of said courts. The parties hereto hereby waive any right to a
jury trial in connection with any litigation pursuant to this Warrant.
-7-
11. Entire Agreement; Amendments.
This Warrant, the Agreement, the Registration Rights Agreement
or the Debentures contain the entire understanding of the parties with respect
to the matters covered hereby and thereby and except as specifically set forth
herein and therein, neither the Company nor the Warrant Holder makes any
representation, warranty, covenant or undertaking with respect to such matters.
No provision of this Agreement may be waived or amended other than by a written
instrument signed by the party against whom enforcement of any such amendment or
waiver is sought.
12. Notices.
Unless otherwise provided herein, any notice or other
communication to a party hereunder shall be sufficiently given if in writing and
personally delivered or sent by facsimile with copy sent in another manner
herein provided or sent by courier (which for all purposes of this Warrant shall
include Federal Express, UPS or other recognized overnight courier) or mailed to
said party by certified mail, return receipt requested, at its address provided
for in the Subscription Agreement or such other address as either may designate
for itself in such notice to the other and communications shall be deemed to
have been received when delivered personally on the scheduled arrival date when
sent by next day or 2-day courier service or if sent by facsimile upon the
receipt of transmittal confirmation or if sent by mail then three days after
deposit in the mail.
13. Choice of Law and Venue; Waiver of Jury Trial.
THIS WARRANT SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS OR CHOICE OF LAW
(OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). The parties
hereby agree that all actions or proceedings arising directly or indirectly from
or in connection with this Warrant shall be litigated only in the Supreme Court
of the State of New York or the United States District Court for the Southern
District of New York located in New York County, New York. The parties consent
to the jurisdiction and venue of the foregoing courts and consent that any
process or notice of motion or other application to either of said courts or a
judge thereof may be served inside or outside the State of New York or the
Southern District of New York by registered mail, return receipt requested,
directed as provided in Section 13 (and service so made shall be deemed complete
five (5) days after the same has been posted as aforesaid) or by personal
service or in such other manner as may be permissible under the rules of said
courts. The parties hereto hereby waive any right to jury trial in connection
with any litigation pursuant to this Warrant.
14. Miscellaneous.
Whenever the sense of this Warrant requires, words in the
singular shall be deemed to include the plural and words in the plural shall be
deemed to include the singular. If more than one company is named herein, the
liability of each shall be joint and several. Paragraph headings are for
-8-
convenience only and shall not affect the meaning of this document. The
invalidity or unenforceability shall in no way affect the validity or
enforceability of any other provisions.
Dated: May 20, 1998
AMERICAN BIOGENETIC SCIENCES, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President Finance - CFO
Attest:
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer and Secretary
-9-
FORM OF WARRANT EXERCISE
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO_____________________________
The undersigned, the holder of the within Warrant, hereby irrevocably elects to
exercise this Warrant for, and to purchase thereunder, ______ shares of Class A
Common Stock of American Biogenetic Sciences, Inc., a Delaware corporation (the
"Company"), and herewith makes payment of $______________ therefor, and requests
that the certificates for such shares be issued in the name of, and delivered to
_____________________, whose address is _____________________.
_____________________
Dated:
__________________________________
(Signature must conform to name of
holder as specified on the face of
the Warrant)
__________________________________
(Address)
-10-
FORM OF ASSIGNMENT
(TO BE SIGNED ONLY ON TRANSFER OF WARRANT)
For value received, the undersigned hereby sells, assigns, and transfers unto
_________________, whose address is ____________________________ and whose
social security or taxpayer identification number is ________________________,
the right represented by the within Warrant to purchase ______ shares of Class A
Common Stock of American Biogenetic Sciences, Inc., a Delaware corporation, to
which the within Warrant relates, and appoints _______________________ Attorney
to transfer such right on the books of American Biogenetic Sciences, Inc., a
Delaware corporation, with full power of substitution the premises.
Dated: ______________________________
(Signature must conform to name of
holder as specified on the face of
the Warrant)
(Address)
Signed in the presence of:
__________________________________
-11-
