THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "1933 ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS, AND MAY
NOT BE SOLD OR TRANSFERRED UNLESS SUCH SALE OR TRANSFER IS IN ACCORDANCE WITH
THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS OR. SOME OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND APPLICABLE LAWS
IS AVAILABLE WITH RESPECT THERETO.
COMMON STOCK PURCHASE WARRANT
Warrant No. CS- Number of Shares: Common Stock
RIGEL PHARMACEUTICALS, INC.
1. ISSUANCE. This Warrant is issued to ,
by RIGEL PHARMACEUTICALS, INC., a Delaware corporation (hereinafter with its
successors called the "COMPANY").
2. PURCHASE PRICE; NUMBER OF SHARES. The registered holder of this
Warrant (the "HOLDER"), commencing on the date hereof, is entitled upon
surrender of this Warrant with the subscription form annexed hereto duly
executed, at the principal office of the Company, to purchase from the
Company the following securities (collectively, the "SHARES") at a price per
share of $1.14 (the "PURCHASE PRICE"),
( ) fully paid and nonassessable shares of Common Stock, $.001 par
value, of the Company (the "COMMON STOCK"). Until such time as this Warrant
is exercised in full or expires, the Purchase Price and the securities
issuable upon exercise of this Warrant are subject to adjustment as
hereinafter provided. The person or persons on whose name or names any
certificate representing shares of Common Stock is issued hereunder shall be
deemed to have become the holder of record of the shares represented thereby
as at the close of business on the date this Warrant is exercised with
respect to such shares, whether or not the transfer books of the Company
shall be closed.
3. PAYMENT OF PURCHASE PRICE. The Purchase Price may be paid (i)
in cash or by Check, (ii) by the surrender by the Holder to the Company of
any promissory notes or other obligations issued by the Company, with all
such notes and obligations so surrendered being credited against the Purchase
Price in an amount equal to the principal amount thereof plus accrued
interest to the date of surrender, or (iii) by any combination of the
foregoing.
4. NET ISSUE ELECTION. The Holder may elect to receive, without
the payment by the Holder of any additional consideration, shares of Common
Stock equal to the value of this Warrant or any portion hereof by the
surrender of this Warrant or such portion to the Company, with the net issue
election notice annexed hereto duly executed, at the principal office of the
Company. Thereupon, the Company shall issue to the Holder such number of
fully paid and nonassessable shares of Common Stock as is computed using the
following formula:
X = Y (A-B)
-------
A
1.
where: X = the number of shares of Common Stock to be issued to the
Holder pursuant to this Section 4.
Y = the number of shares of Common Stock covered by this Warrant
in respect of which the net issue election is made pursuant
to this Section 4.
A = the Fair Market Value (defined below) of one share of Common
Stock, as determined at the time the net issue election is
made pursuant to this Section 4.
B = the Purchase Price in effect under this Warrant at the time
the net issue election is made pursuant to this Section 4.
"Fair Market Value" of a share of Common Stock as of a particular date (the
"Determination Date") shall mean:
(a) If the net issue election is made in connection with and
contingent upon the closing of the sale of the Company's Common Stock to the
public in a public offering pursuant to a Registration Statement under the
Act (a "Public Offering"), and if the Company's Registration Statement
relating to such Public Offering ("Registration Statement") has been declared
effective by the SEC, then the initial "Price to Public" specified in the
final prospectus with respect to such offering multiplied by the number of
shares of Common Stock into which each share of Preferred Stock is then
convertible.
(b) If the net issue election is not made in connection with
and contingent upon a Public Offering, then as follows:
(i) If traded on a securities exchange or the Nasdaq
National Market, the fair market value of the Common Stock shall be deemed to
be the average of the closing or last reported sale prices of the Common
Stock on such exchange or market over the 30-day period ending five business
days prior to the Determination Date (or, if traded on a securities exchange
or the Nasdaq National Market for less than 35 days as of the Determination
Date, over the period beginning on the date of the Public Offering and ending
five business days prior to the Determination Date);
(ii) If otherwise traded in an over-the-counter market,
the fair market value of the Common Stock shall be deemed to be the average
of the closing ask prices of the Common Stock over the 30-day period ending
five business days prior to the Determination Date; and
(iii) If there is no public market for the Common Stock,
then fair market value shall be determined in good faith by the Company's
Board of Directors.
5. PARTIAL EXERCISE. This Warrant may be exercised in part, and the
Holder shall be entitled to receive a new warrant, which shall be dated as of
the date of this Warrant, covering the number of shares in respect of which
this Warrant shall not have been exercised.
2.
6. FRACTIONAL SHARES. In no event shall any fractional share of Common
Stock be issued upon any exercise of this Warrant. If, upon exercise of this
Warrant as an entirety, the Holder would, except as provided in this Section
6, be entitled to receive a fractional share of Common Stock, then the
Company shall pay in lieu thereof, the Fair Market Value of such fractional
share in cash.
7. EXPIRATION DATE; AUTOMATIC EXERCISE. Except as otherwise set forth
in Section 10, this Warrant shall expire on the earlier of (i) the close of
business on June 1, 2008 and (ii) seven years after the closing of the
initial public offering of the Company's Common Stock pursuant to a
registration statement under the Securities Act of 1933, as amended, and
shall be void thereafter.
8. RESERVED SHARES; VALID ISSUANCE. The Company covenants that it will
at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Common Stock, $.001 par value, of the
Company (the "COMMON STOCK"), free from all preemptive or similar rights
therein, as will be sufficient to permit, respectively, the exercise of this
Warrant in full and the conversion into shares of Common Stock upon such
exercise. The Company further covenants that such shares as may be issued
pursuant to such exercise and/or conversion will, upon issuance, be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens
and charges with respect to the issuance thereof.
9. STOCK SPLITS AND DIVIDENDS. If after the date hereof the Company
shall subdivide the Common Stock, by split-up or otherwise, or combine the
Common Stock. or issue additional shares of Common Stock in payment of a
stock dividend on the Common Stock, the number of shares of Common Stock
issuable on the exercise of this Warrant shall forthwith be proportionately
increased in the case of a subdivision or stock dividend, or proportionately
decreased in the case of a combination, and the Purchase Price shall
forthwith be proportionately decreased in the case of a subdivision or stock
dividend, or proportionately increased in the case of a combination.
10. MERGERS AND RECLASSIFICATIONS. If after the date hereof the Company
shall enter into any Reorganization (as hereinafter defined), then, as a
condition of such Reorganization, lawful provisions shall be made, and duly
executed documents evidencing the same from the Company or its successor
shall be delivered to the Holder, so that the Holder shall thereafter have
the right to purchase, at a total price not to exceed that payable upon the
exercise of this Warrant in full, the kind and amount of shares of stock and
other securities and property receivable upon such Reorganization by a holder
of the number of shares of Common Stock which might have been purchased by
the Holder immediately prior to such Reorganization, and in any such case
appropriate provisions shall be made with respect to the rights and interest
of the Holder to the end that the provisions hereof (including without
limitation, provisions for the adjustment of the Purchase Price and the
number of shares issuable hereunder and the provisions relating to the net
issue election) shall thereafter be applicable in relation to any shares of
stock or other securities and property thereafter deliverable upon exercise
hereof. For the purposes of this Section 10, the term "Reorganization" shall
include without limitation any reclassification, capital reorganization or
change of the Common Stock (other than as a result of a subdivision,
3.
combination or stock dividend provided for in Section 9 hereof), or any
consolidation of the Company with, or merger of the Company into, another
corporation or other business organization (other than a merger in which the
Company is the surviving corporation and which does not result in any
reclassification or change of the outstanding Common Stock), or any sale or
conveyance to another corporation or other business organization of all or
substantially all of the assets of the Company.
Notwithstanding the term of this Warrant fixed pursuant to Section 7
above and the provisions of this Section 10, the right to purchase Common
Stock as granted herein shall expire, to the extent not previously exercised,
immediately upon the closing of a merger or consolidation of the Company with
or into another corporation when the Company is not the surviving corporation
(other than a merger or consolidation for the principal purpose of changing
the domicile of the Company), and provided that any securities received in
such merger or consolidation are publicly traded or the sale of all or
substantially all of the Company's capital stock, properties and assets to
any other person, in each case where the stockholders of the Company
immediately prior to such merger, consolidation or sale of assets own
(directly or indirectly) less than 50% of the voting securities of the
surviving entity or purchaser of assets in such transaction (collectively, a
"Merger"), except to the extent assumed by the successor corporation (or
parent thereof) in connection with such Merger. In the event that any
outstanding warrants to purchase equity securities of the Company are
assumed, this Warrant shall also be similarly assumed.
The Company shall notify the Holder at least fifteen (15) calendar days
prior to any proposed Merger, and if the Company fails to deliver such
notice, then notwithstanding anything to the contrary in this Warrant, the
rights to purchase the Company's Common Stock (or the shares of stock and
other securities and property receivable upon such Merger by a holder of
Common Stock (the "OTHER CONSIDERATION")) shall not expire. The Holder may
exercise the Warrant contingent upon the closing of the Merger. If the Merger
does not close within 60 days after notice, any contingent exercise shall be
void.
11. CERTIFICATE OF ADJUSTMENT. Whenever the Purchase Price is adjusted,
as herein provided, the Company shall promptly deliver to the Holder a
certificate of the Company's chief financial officer setting forth the
Purchase Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment.
12. NOTICES OF RECORD DATE, ETC. In the event of:
(a) 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 or other distribution, or any right to
subscribe for, purchase, sell or otherwise acquire or dispose of any shares
of stock of any class or any other securities or property, or to receive any
other right;
(b) any reclassification of the capital stock of the Company,
capital reorganization of the Company, consolidation or merger involving the
Company, or sale or conveyance of all or substantially all of its assets; or
4.
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then in each such event the Company will provide or cause to be provided to
the Holder a written notice thereof. Such notice shall be provided at least
fifteen (15) calendar days prior to the date specified in such notice on
which any such action is to be taken.
13. CORPORATE INFORMATION. As a courtesy to Holder and in order to
enable Holder to make informed decisions regarding the possible exercise of
this Warrant from time to time, the Company agrees, upon written request by
Holder to the chief financial officer of the Company from time to time (but
not more often than twice in any 12-month period), to provide to Holder
copies of the following documents within a reasonable time after such request
(but in all events only to the extent that, and no sooner than the time that,
such documents have been distributed or made available to all the Company's
stockholders): (i) the Company's most recent audited annual financial
statements or, if audited statements are not available, then the Company's
unaudited annual financial statements as of the end of the Company's most
recently ended fiscal year; (ii) unaudited quarterly financial statements for
each quarter of the Company's fiscal year since the date of the annual
financial statements delivered pursuant to clause (i) above; and (iii) any
other reports, proxy statements or notices distributed to holders of the
Company's Common Stock within the last twelve (12) months preceding such
request (or within the period since the last such request by Holder.
whichever is shorter). Notwithstanding the preceding sentence, when the
Company has outstanding a class of publicly-traded securities or is for any
other reason a reporting company under the Securities Exchange Act of 1934,
the rights under this Section 13 shall terminate.
14. REPRESENTATIONS, WARRANTIES AND COVENANTS. This Warrant is issued
and delivered by the Company and accepted by each Holder on the basis of the
following representations, warranties and covenants made by the Company:
(a) The Company has all necessary authority to issue, execute and
deliver this Warrant and to perform its obligations hereunder. This Warrant
has been duly authorized issued, executed and delivered by the Company and is
the valid and binding obligation of the Company, enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws of general application
affecting the enforcement of Holders rights or by general equity principals
or public policy concerns.
(b) The shares of Common Stock issuable upon the exercise of this
Warrant have been duly authorized and reserved for issuance by the Company
and, when issued in accordance with the terms hereof, will be validly issued,
fully paid and nonassessable.
(c) The issuance, execution and delivery of this Warrant do not,
and the issuance of the shares of Common Stock upon the exercise of this
Warrant in accordance with the terms hereof will not, (i) violate or
contravene the Company's Certificate of Incorporation or by-laws, or any law,
statute, regulation, rule, judgment or order applicable to the Company, (ii)
violate, contravene or result in a breach or default under any material
contract, agreement or instrument to which the Company is a party or by which
the Company or any of its assets are
5.
bound or (iii) require the consent or approval of or the filing of any notice
or registration with any person or entity.
15. AMENDMENT AND WAIVER. The terms of this Warrant may be amended,
modified or waived only with the written consent of the party against which
enforcement of the same is sought.
16. REPRESENTATIONS AND COVENANTS OF THE HOLDER. This Common Stock
Purchase Warrant has been entered into by the Company in reliance upon the
following representations and covenants of the Holder, which by its execution
hereof the Holder hereby confirms:
(a) INVESTMENT PURPOSE. The right to acquire Common Stock or the
Common Stock issuable upon exercise of the Holder's rights contained herein
will be acquired for investment and not with a view to the sale or
distribution of any part thereof, and the Holder has no present intention of
selling or engaging in any public distribution of the same except pursuant to
a registration or exemption.
(b) ACCREDITED INVESTOR. Holder is an "accredited investor" within
the meaning of the Securities and Exchange Rule 501 of Regulation D, as
presently in effect.
(c) PRIVATE ISSUE. The Holder understands (i) that the Common
Stock issuable upon exercise of the Holder's rights contained herein is not
registered under the 1933 Act or qualified under applicable state securities
laws on the ground that the issuance contemplated by this Warrant will be
exempt from the registration and qualifications requirements thereof, and
(ii) that the Company's reliance on such exemption is predicated on the
representations set forth in this Section 16.
(d) FINANCIAL RISK. The Holder has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits
and risks of its investment and has the ability to bear the economic risks of
its investment.
17. NOTICES, TRANSFERS, ETC.
(a) Any notice or written communication required or permitted to
be given to the Holder may be given by certified mall or delivered to the
Holder at the address most recently provided by the Holder to the Company.
(b) Subject to compliance with applicable federal and state
securities laws, this Warrant may be transferred by the Holder with respect
to any or all of the shares purchasable hereunder. Upon surrender of this
Warrant to the Company, together with the assignment notice annexed hereto
duly executed, for transfer of this Warrant as an entirety by the Holder, the
Company shall issue a new warrant of the same denomination to the assignee.
Upon surrender of this Warrant to the Company, together with the assignment
hereof properly endorsed, by the Holder for transfer with respect to a
portion of the shares of Preferred Stock purchasable hereunder, the Company
shall issue a new warrant to the assignee, in such denomination as shall
6.
be requested by the Holder hereof, and shall issue to such Holder a new
warrant covering the number of shares in respect of which this Warrant shall
not have been transferred.
(c) In case this Warrant shall be mutilated, lost, stolen or
destroyed, the Company shall issue a new warrant of like tenor and
denomination and deliver the same (i) in exchange and substitution for and
upon surrender and cancellation of any mutilated Warrant, or (ii) in lieu of
any Warrant lost, stolen or destroyed, upon receipt of an affidavit of the
Holder or other evidence reasonably satisfactory to the Company of the loss,
theft or destruction of such Warrant and an indemnification of loss by the
Holder in favor of the Company.
18. NO IMPAIRMENT. The Company will not, by amendment of its
Certificate or through any reclassification, capital reorganization,
consolidation, merger, sale or conveyance of assets, dissolution,
liquidation, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance of 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.
19. GOVERNING LAW. The provisions and terms of this Warrant shall be
governed by and construed in accordance with the internal laws of the State
of California.
20. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the
Holder's successors, legal representatives and permitted assigns.
21. BUSINESS DAYS. If the last or appointed day for the taking of any
action required or the expiration of any rights granted herein shall be a
Saturday or Sunday or a legal holiday in California, then such action may be
taken or right may be exercised on the next succeeding day which is not a
Saturday or Sunday or such a legal holiday.
DATED: June 2, 1998 RIGEL PHARMACEUTICALS, INC.
By: /s/ Xxxxx X Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: President
7.
SUBSCRIPTION
To:_______________________________ Date:_______________________________
The undersigned hereby subscribes for _____________ shares of Preferred
Stock covered by this Warrant. The certificate(s) for such shares shall be
issued in the name of the undersigned or as otherwise indicated below:
___________________________________
Signature
___________________________________
Name for Registration
___________________________________
Mailing Address
NET ISSUE ELECTION NOTICE
To:______________________________ Date:_______________________________
The undersigned hereby elects under Section 4 to surrender the right to
purchase _______________ shares of Preferred Stock pursuant to this Warrant.
The certificate(s) for such shares issuable upon such net issue election
shall be issued in the name of the undersigned or as otherwise indicated
below:
___________________________________
Signature
___________________________________
Name for Registration
___________________________________
Mailing Address
ASSIGNMENT
For value received _____________________ hereby sells, assigns
and transfers unto ______________________________________________________
_________________________________________________________________________
[Please print or typewrite name and address of Assignee]
_________________________________________________________________________
the within Warrant, and does hereby irrevocably constitute and appoint
___________________ its attorney to transfer the within Warrant on the books
of the within named Company with full power of substitution on the premises.
DATED:____________________________ _______________________________
IN THE PRESENCE OF:
__________________________________
