Exhibit 10.3
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE SOLD OR
OTHERWISE DISPOSED OF UNLESS PURSUANT TO A REGISTERED OFFERING OR BY TRANSFER
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS.
ARONEX PHARMACEUTICALS, INC.
Common Stock Purchase Warrant
No. ___ 50,000 Shares
This certifies that, for value received, Genzyme Corporation or
registered assigns (the "holder"), upon due exercise of this Warrant, is
entitled to purchase from Aronex Pharmaceuticals, Inc., a Delaware corporation
(the "Company"), at any time on or after May 21, 1999 (the "Initial Exercise
Date"), and before the close of business on May 21, 2004, or if not a trading
date on the New York Stock Exchange, the next following trading date (the
"Expiration Date"), all or any part of 50,000 fully paid and nonassessable
Shares (the "Warrant Shares") of the Common Stock, par value $0.001 per share,
of the Company ("Common Stock"), at a purchase price of $4.00 per share (the
"Purchase Price"), both the Purchase Price and the number of Warrant Shares
issuable upon exercise of this Warrant being subject to possible adjustment as
provided below.
This Warrant is hereinafter called the "Warrant." The holder hereof and
all subsequent holders of this Warrant shall be entitled to all rights and
benefits provided to the holder or holders hereof pursuant to the terms of this
Warrant.
SECTION 1. EXERCISE OF WARRANT. (a) The holder of this Warrant may, at
any time on or after the Initial Exercise Date and on or before the Expiration
Date, exercise this Warrant in whole at any time or in part (but not less than
10,000 Warrant Shares) from time to time for the purchase of the Warrant Shares
or other securities which such holder is then entitled to purchase hereunder
("Warrant Securities") at the Purchase Price (as hereinafter defined). In order
to exercise this Warrant in whole or in part, the holder hereof shall deliver to
the Company (i) a written notice of such holder's election to exercise this
Warrant, which notice shall specify the number of Warrant Shares to be
purchased, (ii) payment of the aggregate purchase price of the Warrant Shares
being purchased by certified or bank cashier's check, unless pursuant to a
Cashless Exercise as described in subsection (b) below, and (iii) this Warrant.
Upon receipt thereof, the Company shall, as promptly as practicable, execute or
cause to be executed and deliver to such holder a certificate or certificates
representing the aggregate number of Warrant Shares (or if applicable, other
Warrant Securities) specified in said notice. The stock certificate or
certificates so delivered shall be in the denomination of 100 shares each or
such other denominations as may be specified in said notice and shall be
registered in the name of such holder or such other name as shall be designated
in said notice.
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No fractional Warrant Shares are to be issued upon the exercise of this
Warrant, but the Company shall pay a cash adjustment in respect of any fraction
of a share which would otherwise be issuable in an amount equal to the same
fraction of the Current Market Price (as defined below) of the Common Stock on
the day of exercise, as reasonably determined by the Company. If this Warrant
shall have been exercised only in part, the Company shall, at the time of
delivery of said certificate or certificates, deliver to such holder a new
Warrant evidencing the rights of such holder to purchase the remaining Warrant
Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant, or, at the request of such holder, appropriate
notation may be made on this Warrant and same returned to such holder. The
Company shall pay all expenses, taxes and other charges payable in connection
with the preparation, execution and delivery of share certificates under this
Section, except that, if such share certificates are requested to be registered
in a name or names other than the name of the holder of this Warrant, funds
sufficient to pay all stock transfer taxes which shall be payable upon the
execution and delivery of such share certificates shall be paid by the holder
hereof at the time of delivering the notice of exercise mentioned above.
The Company represents, warrants and agrees that all Warrant Shares
issuable upon any exercise of this Warrant in accordance herewith shall be
validly authorized and issued, fully paid and nonassessable.
This Warrant shall not entitle the holder hereof to any of the rights
of a stockholder of the Company prior to exercise in the manner herein provided.
(b) Notwithstanding anything in subsection (a) to the contrary, the
holder of this Warrant may elect to exercise this Warrant in part (but not for
less than 10,000 Warrant Shares) or in whole, at any time on or after the
Initial Exercise Date and on or before the Expiration Date, by the surrender of
this Warrant (with the cashless exercise form at the end hereof duly executed)
(a "Cashless Exercise") at the address set forth in Section 6 hereof. Such
presentation and surrender shall be deemed a waiver of the holder's obligation
to pay the Purchase Price, or the proportionate part thereof if this Warrant is
exercised in part. In the event of a Cashless Exercise, the Holder shall
exchange its Warrant for that number of Warrant Shares or Warrant Securities, as
the case may be, subject to such Cashless Exercise multiplied by a fraction, the
numerator of which shall be the difference between the then Current Market Price
per share of the Common Stock and the per share Purchase Price, and the
denominator of which shall be the then Current Market Price per share of the
Common Stock. For purposes of any computation under this subsection, the then
Current Market Price shall be based on the trading day prior to the Cashless
Exercise. "Current Market Price" shall be deemed to be the last sale price of
the Common Stock on the trading day prior to such date or, in case no such
reported sales take place on such day, the average of the last reported bid and
asked prices of the Common Stock on such day, in either case on the principal
national securities exchange on which the Common Stock is admitted to trading or
listed, or if not listed or admitted to trading on any such exchange, the
representative closing bid price of the Common Stock as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ"),
or other similar organization if NASDAQ is no longer reporting such information,
or, if the Common Stock is not reported on NASDAQ, the high per share bid price
for the Common Stock in the over-
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the-counter market as reported by the National Quotation Bureau or similar
organization, or if not so available, the fair market value of the Common Stock
as determined in good faith by the Board of Directors.
SECTION 2. TRANSFER, DIVISION AND COMBINATION. The Company shall keep
at its principal executive office a register for the registration of, and
registration of transfers of, the Warrants. The name and address of each holder
of one or more Warrants, each transfer thereof and the name and address of each
transferee of one or more Warrants shall be registered in such register. Prior
to due presentment for registration of transfer, the person in whose name any
Warrants shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of a
Warrant promptly upon request therefor, a complete and correct copy of the names
and addresses of all registered holders of Warrants.
Subject to the provisions of Section 3, upon surrender of any Warrant
at the principal executive office of the Company for registration of transfer or
exchange (and in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer duly executed by the
registered holder of such Warrant or his attorney duly authorized in writing and
accompanied by the address for notices of each transferee of such Warrant or
part thereof), the Company shall execute and deliver, at the Company's expense,
one or more new Warrants (as requested by the holder thereof) in exchange
therefor, exercisable for an aggregate number of Warrant Shares equal to the
number of shares for which the surrendered Warrant is exercisable and issued to
such person or persons as such holder may request, which Warrant or Warrants
shall in all other respects be identical with this Warrant.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any
Warrant, and (a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Warrant is,
or is a nominee for, an original holder, such person's own unsecured agreement
of indemnity shall be deemed to be satisfactory), or (b) in the case of
mutilation, upon surrender and cancellation thereof, the Company at its own
expense shall execute and deliver, in lieu thereof, a new Warrant identical in
all respects to such lost, stolen, destroyed or mutilated Warrant.
SECTION 3. COMPLIANCE WITH SECURITIES ACT; RESTRICTIONS ON TRANSFER AND
SALE. (a) Each certificate for Warrant Shares (or other Warrant Securities)
initially issued upon the exercise of this Warrant and each certificate for
Warrant Shares (or other Warrant Securities) issued to subsequent transferees of
any such certificate shall (unless otherwise permitted by this Section 3) be
stamped or otherwise imprinted with legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
SUCH SECURITIES MAY NOT BE SOLD OR OTHERWISE DISPOSED OF
UNLESS PURSUANT TO A REGISTERED OFFERING OR BY TRANSFER
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EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS."
(b) The holder understands that Warrant Shares (or other Warrant
Securities) which may be acquired by it upon exercise of this Warrant shall be
entitled to certain registration rights provided for in the Amendment No. 4 to
the License and Development Agreement of even date herewith relating to the
issuance of this Warrant between the Company and the holder.
SECTION 4. ADJUSTMENT OF PURCHASE PRICE.
(a) The Purchase Price and the number of Warrant Shares and the number
or amount of any other securities and property as hereinafter provided for which
this Warrant may be exercisable shall be subject to adjustment from time to time
effective upon each occurrence of any of the following events.
(b) If the Company shall declare or pay any dividend with respect to
its Common Stock payable in shares of Common Stock, subdivide the outstanding
Common Stock into a greater number of shares of Common Stock, or reduce the
number of shares of Common Stock outstanding (by stock split, reverse stock
split, reclassification or otherwise than by repurchase of its Common Stock)
(any of such events being hereinafter called a "Stock Split"), the Purchase
Price and number of Warrant Shares issuable upon exercise of this Warrant shall
be appropriately adjusted so as to entitle the holder hereof to receive upon
exercise of this Warrant, for the same aggregate consideration provided herein,
the same number of shares of Common Stock (plus cash in lieu of fractional
shares) as the holder would have received as a result of such Stock Split had
such holder exercised this Warrant in full immediately prior to such Stock
Split.
(c) If the Company shall merge or consolidate with or into one or more
corporations or partnerships and the Company is the sole surviving corporation,
or the Company shall adopt a plan of recapitalization or reorganization in which
the Common Stock is exchanged for or changed into another class of stock or
other security or property of the Company, the holder of this Warrant shall, for
the same aggregate consideration provided herein, be entitled upon exercise of
this Warrant to receive in lieu of the number of shares of Common Stock as to
which this Warrant would otherwise be exercisable, the number of shares of
Common Stock or other securities (plus cash in lieu of fractional shares) or
property to which such holder would have been entitled pursuant to the terms of
the agreement or plan of merger, consolidation, recapitalization or
reorganization had such holder exercised this Warrant in full immediately prior
to such merger, consolidation, recapitalization or reorganization.
(d) If the Company is merged or consolidated with or into one or more
corporations or partnerships under circumstances in which the Company is not the
sole surviving corporation, or if the Company sells or otherwise disposes of
substantially all its assets, and in connection with any such merger,
consolidation or sale the holders of Common Stock receive stock or other
securities convertible into equity of the surviving or acquiring corporations or
entities, or other securities or property after the effective date of such
merger, consolidation or sale, as the case may be, the holder
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of this Warrant shall, for the same aggregate consideration provided herein, be
entitled upon exercise of this Warrant to receive, in lieu of the shares of
Common Stock as to which this Warrant would otherwise be exercisable, shares of
such stock or other securities (plus cash in lieu of fractional shares) or
property as the holder of this Warrant would have received pursuant to the terms
of the merger, consolidation or sale had such holder exercised this Warrant in
full immediately prior to such merger, consolidation or sale. In the event of
any consolidation, merger or sale as described in this Section 4(d), provision
shall be made in connection therewith for the surviving or acquiring
corporations or partnerships to assume all obligations and duties of the Company
hereunder or to issue substitute warrants in lieu of this Warrant with all such
changes and adjustments in the number or kind of shares of stock or securities
or property thereafter subject to this Warrant or in the Purchase Price as shall
be required in connection with this Section 4(d).
(e) If the Company, at any time after the date hereof and before the
Expiration Date, shall issue or sell or fix a record date for the issuance of
rights, options, warrants or convertible or exchangeable securities to all
holders of Common Stock entitling them to subscribe for or purchase Common Stock
(or securities convertible into Common Stock) at a price per share (or having a
conversion price per share), that together with the value of any consideration
paid for any such rights, options, warrants or convertible or exchangeable
securities (as determined in good faith by the Board of Directors of the
Company) is less than the fair market value of a share of Common Stock as of the
date of such issuance or sale or on such record date; then, immediately after
the date of such issuance or sale or on such record date, the holder shall have
the right to receive, upon the same terms as the holders of Common Stock, the
kind and amount of rights, options, warrants or convertible or exchangeable
securities receivable in such offering by a holder of the number of shares of
Common Stock that the holder would have been entitled to receive upon exercise
of this Warrant pursuant to Section 1 hereof had such Warrant been exercised
immediately before such issuance or the record date for such issuance.
(f) If (other than in dissolution or liquidation) securities of the
Company (other than shares of Common Stock or securities issued pursuant to a
shareholder rights or similar plan) or assets are issued by way of a dividend on
outstanding shares of Common Stock, then the Purchase Price shall be adjusted so
that it shall equal the price determined by multiplying the Purchase Price by a
fraction, the numerator of which shall be the last sale price of the Common
Stock on such record date less the then fair market value as determined by the
Board of Directors of the Company of the portion of the securities or assets
distributed applicable to one share of Common Stock, and the denominator of
which shall be such last sale price. Such adjustment shall become effective
immediately prior to the opening of business on the day following such record
date.
(g) If the Company (other than in connection with a sale described in
Section 4(d)) proposes to liquidate and dissolve, the Company shall give notice
thereof as provided in Section 5(b) hereof and shall permit the holder of this
Warrant to exercise any unexercised portion hereof at any time within the 10 day
period following delivery of such notice, if such holder should elect to do so,
and participate as a stockholder of the Company in connection with such
dissolution.
(h) Whenever any adjustment is made as provided in any provision of
this Section 4:
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(i) the Company shall compute the adjustments in
accordance with this Section 4 and shall prepare a certificate
signed by an officer of the Company setting forth the adjusted
number of shares or other securities or property and Purchase
Price, as applicable, and showing in reasonable detail the
facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Company or its
designee; and
(ii) a notice setting forth the adjusted number of
shares or other securities or property and the Purchase Price,
as applicable, shall forthwith be required, and as soon as
practicable after it is prepared, such notice shall be
delivered by the Company to the holder of record of each
Warrant.
(i) If at any time, as a result of any adjustment made pursuant to this
Section 4, the holder of this Warrant shall become entitled, upon exercise
hereof, to receive any shares other than shares of Common Stock or to receive
any other securities, the number of such other shares or securities so
receivable upon exercise of this Warrant shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions contained in this Section 4 with respect to the Common Stock.
SECTION 5. SPECIAL AGREEMENTS OF THE COMPANY.
(a) The Company covenants and agrees that it will reserve and set apart
and have at all times a number of shares of authorized but unissued Common Stock
(and, if applicable, other Warrant Securities) then deliverable upon the
exercise of the Warrants or any other rights or privileges provided for therein
sufficient to enable it at any time to fulfill all its obligations thereunder;
and if at any time the number of authorized but unissued shares of Common Stock
shall not be sufficient to effect the exercise of this Warrant at the Purchase
Price then in effect, the Company will take such corporate action as may, in the
reasonable opinion of its counsel, be necessary to increase its authorized
shares but unissued shares of Common Stock (and, if applicable, other Warrant
Securities) to such number of shares as shall be sufficient for such purposes.
(b) In case the Company proposes
(i) to pay any dividend upon the Common Stock or make
any distribution or offer any subscription or
other rights to the holders of Common Stock, or
(ii) to effect any capital reorganization or
reclassification of capital stock of the Company,
(iii) to effect the consolidation, merger, sale of all
or substantially all of the assets, liquidation,
dissolution or winding up of the Company,
(iv) to effect a rights offering to its stockholders,
or
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(v) to conduct a self-tender offer or other repurchase
of outstanding shares of Company Common Stock,
other than in connection with repurchases from
employees upon termination of their employment,
then the Company shall cause notice of any such intended action to be given to
each holder of the Warrants not less than 15 nor more than 60 days prior to the
date on which the transfer books of the Company shall close or a record be taken
for such dividend or distribution, or the date when such capital reorganization,
reclassification, consolidation, merger, sale, liquidation, dissolution or
winding up shall be effected, or the date of such other event, as the case may
be.
Section 6. Notices. Any notice or other document required or permitted
to be given or delivered to holders of Warrants and holders of Common Stock (or
other Warrant Securities) shall be in writing and sent (a) by telecopy if the
sender on the same day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), or (b) by registered or certified
mail with return receipt requested (postage prepaid) or (c) by a recognized
overnight delivery service (with charges prepaid).
(i) if to the Company, at Aronex Pharmaceuticals, Inc., 0000
Xxxxxxxxxx Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxx 00000,
Telecopy No.: (000) 000-0000, or such other address as it
shall have specified to the holders of Warrants in writing;
or
(ii) if to a holder, at its address set forth below, or such
other address as it shall have specified to the Company in
writing.
Notices given under this Section 6 shall be deemed given only when actually
received.
SECTION 7. AMENDMENT. This Warrant may not be amended, modified or
otherwise altered in any respect except by the written consent of the registered
holder of this Warrant and the Company.
SECTION 8. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon
and inure to the benefit of the Company and the holder of this Warrant and their
respective successors and permitted assigns.
SECTION 9. GOVERNING LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to the conflicts of law principles thereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed in its name by its duly authorized officers and accepted by the holder of
this Warrant this 21st day of May, 1999.
Attest: ARONEX PHARMACEUTICALS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxx
------------------------------- -----------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxx
------------------------------- -----------------------
Title: Secretary Title: Chairman of the Board
------------------------------- & Chief Executive Officer
-------------------------
Holder:
/s/ Xxxxxxx Xxxxxxx
--------------------
Address for Notices:
--------------------
--------------------
--------------------
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SUBSCRIPTION
The undersigned, ___________________, pursuant to the
provisions of the foregoing Warrant, hereby agrees to subscribe for and purchase
____________________ shares of the Common Stock, par value $.001 per share, of
Aronex Pharmaceuticals, Inc. covered by said Warrant, and makes payment therefor
in full at the price per share provided by said Warrant.
Dated:__________________ Signature:____________________
Signature Guarantee: Address:______________________
________________________ Social Security No. _____________
CASHLESS EXERCISE
The undersigned ___________________, pursuant to the
provisions of the foregoing Warrant, hereby elects to exchange its Warrant for
___________________ shares of Common Stock, par value $.001 per share, of Aronex
Pharmaceuticals, Inc. pursuant to the Cashless Exercise provisions of the
Warrant.
Dated:__________________ Signature:____________________
Signature Guarantee: Address:______________________
________________________ Social Security No.:_____________
ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby sells, assigns and
transfers unto ____________________ (SS#_________________) the foregoing Warrant
and all rights evidenced thereby, and does irrevocably constitute and appoint
_____________________, attorney, to transfer said Warrant on the books of Aronex
Pharmaceuticals, Inc.
Dated:__________________ Signature:____________________
Signature Guarantee: Address:______________________
________________________
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PARTIAL ASSIGNMENT
FOR VALUE RECEIVED _______________ hereby assigns and
transfers unto ____________________ (SS#________________) the right to purchase
_______ shares of the Common Stock, par value $.001 per share, of Aronex
Pharmaceuticals, Inc. covered by the foregoing Warrant, and a proportionate part
of said Warrant and the rights evidenced thereby, and does irrevocably
constitute and appoint ____________________, attorney, to transfer that part of
said Warrant on the books of Aronex Pharmaceuticals, Inc.
Dated:_______________ Signature:____________________
Signature Guarantee: Address:______________________
_____________________
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