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EXHIBIT 10.57
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
OR EXERCISED UNLESS AND UNTIL SUCH WARRANT AND/OR SHARES OF COMMON STOCK IS
REGISTERED UNDER SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED. THIS WARRANT
AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT ARE
SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTIONS 4 AND 11 OF THIS
WARRANT
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Warrant No. 1 Number of Shares: 65,000
(subject to adjustment)
Date of Issuance: December 31, 1996
HYBRIDON, INC.
Common Stock Purchase Warrant
(Void after December 31, 2001)
Hybridon, Inc., a Delaware corporation (the "Company"), for value
received, hereby certifies that Silicon Valley Bank (the "Bank"), or its
registered assigns (the "Registered Holder"), is entitled, subject to the terms
set forth below, upon exercise of this Warrant to purchase from the Company, at
any time or from time to time on or after the date of issuance and on or before
December 31, 2001 at not later than 5:00 p.m. (Boston, Massachusetts time),
sixty-five thousand (65,000) shares of Common Stock, $.001 par value per share,
of the Company ("Common Stock"), at a purchase price of $6.90 per share. The
shares purchasable upon exercise of this Warrant, and the purchase price per
share, each as adjusted from time to time pursuant to the provisions of this
Warrant, are hereinafter referred to as the "Warrant Shares" and the "Purchase
Price," respectively. This Warrant is being issued by the Company in connection
with the Loan and Security Agreement entered into between the Company and the
Bank on the date hereof.
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1. Exercise.
(a) This Warrant may be exercised by the Registered Holder, in whole
or in part, by surrendering this Warrant, with the purchase form appended hereto
as Exhibit I duly executed by such Registered Holder or by such Registered
Holder's duly authorized attorney, at the principal office of the Company, or at
such other office or agency as the Company may designate, accompanied by payment
in full, in lawful money of the United States, of the Purchase Price payable in
respect of the number of Warrant Shares purchased upon such exercise.
(b) Notwithstanding the provisions of subsection 1(a) above, the
Registered Holder may, at its option, elect to pay some or all of the Purchase
Price payable upon an exercise of this Warrant by cancelling a portion of this
Warrant exercisable for such number of Warrant Shares as is determined by
dividing (i) the total Purchase Price payable in respect of the number of
Warrant Shares being purchased upon such exercise pursuant to this subsection
1(b) by (ii) the excess of the Fair Market Value (as defined below) per Warrant
Share as of the effective date of exercise, as determined pursuant to subsection
1(e) below (the "Exercise Date"), over the Purchase Price per share. For
example, if (A) this Warrant were exercisable for 100,000 Warrant Shares at an
exercise price of $5.00 per share, (B) the Registered Holder wished to purchase
10,000 Warrant Shares upon exercise of this Warrant and (C) the Fair Market
Value per Warrant Share as of the effective date of exercise was $15.00, then
the Registered Holder could purchase 10,000 Warrant Shares upon exercise of this
Warrant by electing to cancel a portion of this Warrant exercisable for 5,000
Warrant Shares ((10,000 x $5.00) / ($15.00 - $5.00)), and this Warrant would
thereafter be exercisable for 85,000 Warrant Shares.
(c) For purposes of this Warrant, the Fair Market Value per Warrant
Share shall be determined as follows:
(i) If the Warrant Shares are listed on a national securities
exchange, The Nasdaq Stock Market or another nationally recognized exchange or
trading system as of the Exercise Date, the Fair Market Value per Warrant Share
shall be deemed to be the average closing price per Warrant Share thereon for
the 10 trading days immediately preceding (and not including) the Exercise Date;
(ii) If the Warrant Shares are not listed on a national
securities exchange, The Nasdaq Stock Market or another nationally recognized
exchange or trading system as of the Exercise Date, the Fair Market Value per
Warrant Share shall be reasonably determined in good faith by the Board of
Directors of the Company.
(d) Each exercise of this Warrant shall be deemed to have been
effected immediately prior to the close of business on the day on which this
Warrant shall have been surrendered to the Company as provided in subsection
1(a) above.
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At such time, the person or persons in whose name or names any certificates for
Warrant Shares shall be issuable upon such exercise as provided in subsection
1(e) below shall be deemed to have become the holder or holders of record of the
Warrant Shares represented by such certificates.
(e) As soon as practicable after the exercise of this Warrant in
full or in part, and in any event within 10 days thereafter, the Company, at its
expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Registered Holder (upon payment by such Registered
Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full
Warrant Shares to which such Registered Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which such Registered Holder
would otherwise be entitled, cash in an amount determined pursuant to Section 3
hereof; and
(ii) in case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the aggregate on the
face or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for on the
face of this Warrant minus the sum of (A) the number of such shares purchased by
the Registered Holder upon such exercise as provided in subsection 1(a) above
and (B) the number of Warrant Shares (if any) covered by the portion of this
Warrant cancelled in payment of the Purchase Price payable upon such exercise
pursuant to subsection 1(b) above.
2. Adjustments.
(a) If outstanding shares of the Company's Common Stock shall be
subdivided into a greater number of shares or a dividend in Common Stock shall
be paid in respect of Common Stock, the Purchase Price in effect immediately
prior to such subdivision or at the record date of such dividend shall
simultaneously with the effectiveness of such subdivision or immediately after
the record date of such dividend be proportionately reduced. If outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Purchase Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
increased. When any adjustment is required to be made in the Purchase Price, the
number of Warrant Shares purchasable upon the exercise of this Warrant shall be
changed to the number determined by dividing (i) an amount equal to the number
of shares issuable upon the exercise of this Warrant immediately prior to such
adjustment, multiplied by the Purchase Price in effect immediately prior to such
adjustment, by (ii) the Purchase Price in effect immediately after such
adjustment.
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(b) If there shall occur any capital reorganization or
reclassification of the Company's Common Stock (other than a change in par value
or a subdivision or combination as provided for in subsection 2(a) above), or
any consolidation or merger of the Company with or into another corporation, or
a transfer of all or substantially all of the assets of the Company, then, as
part of any such reorganization, reclassification, consolidation, merger or
sale, as the case may be, lawful provision shall be made so that the Registered
Holder of this Warrant shall have the right thereafter to receive upon the
exercise hereof the kind and amount of shares of stock or other securities or
property which such Registered Holder would have been entitled to receive if,
immediately prior to any such reorganization, reclassification, consolidation,
merger or sale, as the case may be, such Registered Holder had held the number
of shares of Common Stock which were then purchasable upon the exercise of this
Warrant. In any such case, appropriate adjustment (as reasonably determined in
good faith by the Board of Directors of the Company) shall be made in the
application of the provisions set forth herein with respect to the rights and
interests thereafter of the Registered Holder of this Warrant, such that the
provisions set forth in this Section 2 (including provisions with respect to
adjustment of the Purchase Price) shall thereafter be applicable, as nearly as
is reasonably practicable, in relation to any shares of stock or other
securities or property thereafter deliverable upon the exercise of this Warrant.
(c) When any adjustment is required to be made in the Purchase
Price, the Company shall promptly mail to the Registered Holder a certificate
setting forth the Purchase Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment. Such certificate shall also
set forth the kind and amount of stock or other securities or property into
which this Warrant shall be exercisable following the occurrence of any of the
events specified in subsection 2(a) or (b) above.
3. Fractional Shares. The Company shall not be required upon the exercise
of this Warrant to issue any fractional shares, but shall make an adjustment
therefor in cash on the basis of the Fair Market Value per Warrant Share, as
determined in accordance with subsection 1(c) above.
4. Requirements for Transfer.
(a) This Warrant and the Warrant Shares shall not be sold or
transferred unless either (i) they first shall have been registered under the
Securities Act of 1933, as amended (the "Act"), or (ii) the Company first shall
have been furnished with an opinion of legal counsel, reasonably satisfactory to
the Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Act.
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(b) Each certificate representing Warrant Shares 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
securities 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
Warrant Shares, at the request of the holder thereof, at such time as they
become eligible for resale pursuant to Rule 144(k) under the Act.
5. No Impairment. The Company will not, by amendment of its charter or
through reorganization, consolidation, merger, dissolution, sale of assets 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 necessary or appropriate in order to protect the rights of the holder of
this Warrant against impairment.
6. Liquidating Dividends. If the Company pays a dividend or makes a
distribution on the Common Stock payable otherwise than in cash out of earnings
or earned surplus (determined in accordance with generally accepted accounting
principles) except for a stock dividend payable in shares of Common Stock (a
"Liquidating Dividend"), then the Company will pay or distribute to the
Registered Holder of this Warrant, upon the exercise hereof, in addition to the
Warrant Shares purchased upon such exercise, the Liquidating Dividend which
would have been paid to such Registered Holder if he had been the owner of
record of such Warrant Shares immediately prior to the date on which a record is
taken for such Liquidating Dividend or, if no record is taken, the date as of
which the record holders of Common Stock entitled to such dividends or
distribution are to be determined.
7. Notices of Record Date, etc. In case:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon the exercise of
this Warrant) for the purpose of entitling or enabling them to receive any
dividend or other distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other securities, or to receive
any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any consolidation or
merger of the Company with or into another corporation (other than a
consolidation or merger in which the
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Company is the surviving entity), or any transfer of all or substantially all of
the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be mailed to the
Registered Holder of this Warrant a notice specifying, as the case may be, (i)
the date on which a 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 effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation or
winding-up. Such notice shall be mailed at least ten (10) days, or if such
advance notice is not practicable, then such shorter period as may be
practicable, prior to the record date or effective date for an event specified
in subsection 7(a), (b) or (c).
8. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant.
9. Exchange of Warrants. Upon the surrender by the Registered Holder of
any Warrant or Warrants, properly endorsed, to the Company at the principal
office of the Company, the Company will, subject to the provisions of Sections 4
and 11 hereof, issue and deliver to or upon the order of such Registered Holder,
at the Company's expense, a new Warrant or Warrants of like tenor, in the name
of such Registered Holder or as such Registered Holder (upon payment by such
Registered Holder of any applicable transfer taxes) may direct, calling in the
aggregate on the face or faces thereof for the number of shares of Common Stock
called for on the face or faces of the Warrant or Warrants so surrendered.
10. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
11. Transfers, etc.
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(a) The Company will maintain a register containing the name and
address of the Registered Holder of this Warrant. Any Registered Holder may
change its or his address as shown on the warrant register by written notice to
the Company requesting such change.
(b) Subject to the provisions of Section 4 hereof, this Warrant and
all rights hereunder are transferable, in whole or in part, upon surrender of
this Warrant with a properly executed assignment (in the form of Exhibit II
hereto) at the principal office of the Company.
(c) Until any transfer of this Warrant is made in the warrant
register, the Company may treat the Registered Holder of this Warrant as the
absolute owner hereof for all purposes; provided, however, that if and when this
Warrant is properly assigned in blank, the Company may (but shall not be
obligated to) treat the bearer hereof as the absolute owner hereof for all
purposes, notwithstanding any notice to the contrary.
12. Representations of the Registered Holder. The Registered Holder of
this Warrant represents and warrants to the Company as follows:
(a) Investment. The Registered Holder is acquiring this Warrant and
the Warrant Shares issuable upon the exercise of this Warrant, for its own
account for investment and not with a view to, or for sale in connection with,
any distribution thereof, nor with any present intention of distributing or
selling the same, except as otherwise may be permitted under applicable
securities laws.
(b) Authority. The Registered Holder has full power and authority to
enter into and to perform this Warrant in accordance with its terms. The
Registered Holder has not been organized, reorganized or recapitalized
specifically for the purpose of investing in the Company.
(c) Experience. The Registered Holder has made detailed inquiry
concerning the Company, its business and its personnel; the officers of the
Company have made available to the Registered Holder the opportunity to ask
questions and receive answers concerning the terms and conditions of the this
Warrant and the Warrant Shares and to obtain any additional information that the
Company possesses or can acquire without unreasonable effort or expense that is
necessary to verify the accuracy of information provided by the Company to the
Registered Holder; and the Registered Holder has adequate net worth and means of
providing for its current needs and personal contingencies to sustain a complete
loss of its investment in the Company; the Registered Holder's overall
commitment to investments which are not readily marketable is not
disproportionate to its net worth and the Registered Holder's investment in this
Warrant and the Warrant Shares issuable upon exercise of this Warrant will not
cause such overall commitment to become excessive.
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(d) Accredited Investor. The Registered Holder is an Accredited
Investor within the definition set forth in Rule 501(a) promulgated under the
Securities Act.
13. Giving of Notices, etc. All notices and other communications from
the Company to the Registered Holder of this Warrant shall be in writing and
shall be deemed effective (i) upon delivery by hand, (ii) two business days
after deposit with an express courier service for delivery no later than two
business days after such deposit, addressed to the Registered Holder at the
address set forth on the warrant register maintained by the Company, or (iii)
upon confirmation of transmittal by telecopy to the Registered Holder, with a
hard copy sent in accordance with the preceding clause (ii), to the telecopy
number set forth on the warrant register maintained by the Company. All notices
and other communications from the Registered Holder of this Warrant to the
Company shall be in writing and shall be deemed effective (i) upon delivery by
hand, (ii) two business days after deposit with an express courier service for
delivery no later than two business days after such deposit, addressed to the
Company at its principal office set forth below, or (iii) upon confirmation of
transmittal by telecopy, with a hard copy sent in accordance with the preceding
clause (ii), to the telecopy number of the Company set forth below. If the
Company should at any time change the location of its principal office to a
place other than as set forth below or change its telecopy number to a number
other than as set forth below, it shall give prompt written notice to the
Registered Holder of this Warrant in the manner prescribed herein, and
thereafter all references in this Warrant to the location of its principal
office or telecopy number at the particular time shall be as so specified in
such notice.
14. No Rights as Stockholder. Until the exercise of this Warrant, the
Registered Holder of this Warrant shall not have or exercise any rights by
virtue hereof as a stockholder of the Company.
15. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against which enforcement
of the change or waiver is sought.
16. Headings. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
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17. Governing Law. This Warrant will be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
[Corporate Seal] HYBRIDON, INC.
ATTEST: By: /s/ Xxxxxxx X. Xxxxx
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Title:_________________________
_______________________ Address: Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
AGREED AND ACCEPTED:
SILICON VALLEY BANK
By:________________________
Title:_____________________
Address:___________________
___________________
Telecopy No.:______________
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EXHIBIT I
PURCHASE FORM
To:_________________ Dated:______________
The undersigned, pursuant to the provisions set forth in the attached
Warrant (No. ___), hereby irrevocably elects to purchase _____ shares of the
Common Stock covered by such Warrant and herewith makes payment of
$____________, and/or pursuant to subsection 1(b) of such Warrant elects to
cancel such portion of such Warrant exercisable for _______ Warrant Shares,
representing the full purchase price for such shares at the price per share
provided for in such Warrant.
Signature:__________________________
Address:____________________________
____________________________
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EXHIBIT II
ASSIGNMENT FORM
FOR VALUE RECEIVED, ________________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (No. ____) with respect to the number of shares of Common Stock covered
thereby set forth below, unto:
Name of Assignee Address No. of Shares
Dated:______________ Signature:_______________________________
Dated:______________ Witness:_________________________________
