EXHIBIT 10.3
NEITHER THIS WARRANT NOR THE SHARES OF CAPITAL STOCK PURCHASABLE HEREUNDER HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW AND, ACCORDINGLY, NEITHER THIS WARRANT NOR SUCH SHARES MAY BE
OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS
THE REGISTRATION PROVISIONS OF SUCH ACT AND ALL APPLICABLE STATE SECURITIES LAWS
HAVE BEEN COMPLIED WITH OR UNLESS THE CORPORATION HAS RECEIVED AN OPINION OF
COUNSEL ACCEPTABLE TO IT THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SHARES OF CAPITAL STOCK PURCHASABLE HEREUNDER ARE SUBJECT TO THE TERMS AND
PROVISIONS OF A VOTING AGREEMENT AMONG THE CORPORATION AND CERTAIN STOCKHOLDERS
OF THE CORPORATION. THE CORPORATION SHALL FURNISH A COPY OF SUCH VOTING
AGREEMENT TO ANY REGISTERED HOLDER OF THIS WARRANT OR SUCH SHARES OF CAPITAL
STOCK UPON WRITTEN REQUEST AND WITHOUT CHARGE.
SEQUENOM, INC.
STOCK PURCHASE WARRANT
Warrant to Purchase _____ Shares of
Series C Convertible Preferred Stock
Issued to ________________
Void after May __, 2004
Sequenom, Inc., a Delaware corporation (the "Corporation'), hereby
covenants and agrees with ____________ as follows:
1. The Warrant.
-----------
1.01 For value received and subject to the terms and conditions
hereinafter set forth, the registered holder of this Warrant (the
"Warrantholder") is entitled upon its surrender, with the subscription form
annexed hereto duly executed, at the office of the Corporation at 00000 Xxxxxxxx
Xxxxxx Xxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxxxx 00000, or at such other office as
the Corporation shall notify the Warrantholder in writing, to purchase from the
Corporation __________ fully paid and non-assessable shares of the Series C
Convertible Preferred Stock, par value $.001 per share ("Series C Preferred
Stock"), of the Corporation for $3.15 per share (the "Exercise Price"), subject
to adjustment as set forth in Sections 2 and 4 hereof. This Warrant may be
exercised in full or in part from time to time. As promptly as practicable
after
surrender of this Warrant and receipt of payment of the Exercise Price, the
Corporation shall issue and deliver to the Warrantholder a certificate or
certificates for shares of Series C Preferred Stock, in certificates of such
denominations and in such name as the Warrantholder may specify, together with
any other stock, securities or property that such holder may be entitled to
receive pursuant hereto. This Warrant shall expire at the close of business on
May 8, 2004, and shall be void thereafter. Upon and after the Automatic
Conversion Effective Time (as defined in Section 4), the right to purchase
Series C Preferred Stock granted herein shall terminate, and this Warrant shall
represent the right to purchase shares of the Common Stock, par value $.001 per
share, of the Corporation ("Common Stock") as provided in Section 4 hereof. The
shares of Series C Preferred Stock, Common Stock or securities or other property
purchasable upon exercise of this Warrant are sometimes referred to hereinafter
as "Warrant Shares".
1.02 Prior to the Automatic Conversion Effective Time (as defined in
Section 4), the Corporation shall at all times have authorized and reserved for
purposes of issue upon exercise of the rights evidenced hereby, a sufficient
number of shares of its Series C Preferred Stock to provide for the exercise of
such rights, and shall at all times have authorized and reserved a sufficient
number of shares of its Common Stock for purposes of issue upon conversion of
such shares of Series C Preferred Stock under the terms of the Charter (as
defined in Subsection 2.05). From and after the Automatic Conversion Effective
Time, the Corporation shall at all times have authorized and reserved for
purposes of issue upon exercise of the rights evidenced hereby, a sufficient
number of shares of its Common Stock to provide for the exercise of such rights.
Upon surrender for exercise, this Warrant shall be cancelled and shall not be
reissued; provided, however, that upon the partial exercise hereof a substitute
Warrant of like tenor and date to the original Warrant representing the rights
to subscribe for and purchase any such unexercised portion hereof shall be
issued.
1.03 This Warrant may be subdivided into one or more stock purchase
warrants entitling the Warrantholder to purchase Warrant Shares in multiples of
one or more whole shares, upon surrender of the Warrant by the Warrantholder for
such purpose at the office of the Corporation.
1.04 The Corporation shall maintain at its office (or at such other office
or agency of the Corporation as it may from time to time designate in writing to
the Warrantholder), a register containing the names and address of the holder of
this Warrant. The registered holder of this Warrant shall be the person in
whose name this Warrant is originally issued and registered, unless a subsequent
holder shall have presented to the Corporation the Warrant, duly assigned to
him, for inspection, and a written notice of his acquisition of the Warrant and
designating in writing the address of such holder, in which case such subsequent
holder of the Warrant shall become a subsequent registered holder, and a
Warrantholder as defined herein. Any Warrantholder may change his address as
shown on such register by written notice to the Corporation requesting such
change. Any written notice required or permitted to be given to any
Warrantholder shall be delivered in person or duly sent by first class mail
postage prepaid (other than to non-U.S. parties) or fax or DHL, Federal Express
or other internationally recognized express courier service, to such
Warrantholder at his address as shown on such register.
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1.05 If any shares of Common Stock issuable hereunder upon and after the
Corporation's initial public offering of Common Stock require listing on any
domestic securities exchange, before such shares may be issued upon exercise of
this Warrant, the Corporation shall, at its expense and as expeditiously as
possible, use its best efforts to cause such shares to be duly approved for
listing on such domestic securities exchange.
2. Adjustment Rights.
-----------------
The Exercise Price and the number of Warrant Shares purchasable hereunder
are subject to adjustment, as follows:
2.01 If the Corporation shall effect a subdivision or combination or
consolidation of shares (whether by way of stock split, reverse stock split or
otherwise) or other capital reorganization or reclassification of any class or
series of the capital stock of the Corporation for which this Warrant is then
exercisable, or the payment of a stock dividend or other distribution of stock
with respect to any such class or series of capital stock, then the number of
Warrant Shares purchasable hereunder and the Exercise Price shall be
appropriately adjusted in such a manner as to entitle the Warrantholder to
receive upon exercise of this Warrant, for the same aggregate consideration, the
same total number, type, class and series of securities and other property as
such Warrantholder would have received as a result of the event requiring the
adjustment had such Warrantholder exercised this Warrant in full immediately
prior to such event.
2.02 If there shall occur any consolidation or merger of the Corporation
or sale of all or substantially all of the Corporation's assets, then as a
condition of such consolidation, merger or sale, lawful and adequate provision
shall be made whereby the Warrantholder shall thereafter have the right to
purchase and receive upon the basis and upon the terms and conditions herein
specified and in lieu of the Warrant Shares immediately theretofore purchasable
and receivable upon exercise of this Warrant, such securities and other property
as such Warrantholder would have received as a result of the event requiring the
adjustment had such Warrantholder exercised this Warrant in full immediately
prior to such event, and in any such case appropriate provision shall be made
with respect to the rights and interests of the Warrantholder to the end that
the provisions hereof shall thereafter be applicable, as nearly as may be, in
relation to the securities and other property thereafter deliverable upon the
exercise hereof.
2.03 Upon the occurrence of any event specified in Subsection 2.01 or
Subsection 2.02, then, and in each such case, the Corporation shall give written
notice thereof to the Warrantholder in accordance with Subsection 1.04, which
notice shall state the adjustment in the Warrant Shares and the Exercise Price
resulting from such event, and shall set forth in reasonable detail the method
of calculation and the facts upon which such calculation is based.
2.04 In case at any time: (1) the Corporation shall pay any dividend or
make any distribution (other than regular cash dividends from earnings or earned
surplus paid at an established rate) to the holders of its Series C Preferred
Stock or Common Stock or offer to all holders of its Series C Preferred Stock or
Common Stock the right to subscribe for the purchase of any shares of capital
stock or securities convertible into or exercisable for such shares of
-3-
capital stock; (2) there shall be any capital reorganization or reclassification
of the capital stock of the Corporation, or consolidation or merger of the
Corporation, or sale of all or substantially all of its assets; or (3) there
shall be a voluntary or involuntary dissolution, liquidation or winding-up of
the Corporation; then, in any one or more of such cases, the Corporation shall
give written notice thereof to the Warrantholder in accordance with Subsection
1.04, which notice shall state the date on which (a) the books of the
Corporation shall close or a record date shall be fixed for determining the
stockholders entitled to such dividend, distribution or subscription rights, or
(b) such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding-up shall take place, as the case may be.
Such notice shall also provide reasonable details of the proposed transaction
and specify the date as of which the record holders of Series C Preferred Stock
or Common Stock shall participate in such dividend, distribution or subscription
rights, or shall be entitled to exchange their Series C Preferred Stock or
Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up, as the case may be. Such written notice shall be
given at least fifteen (15) days prior to the action in question and not less
than fifteen (15) days prior to the record date or the date on which the
Corporation's transfer books are closed in respect thereto.
2.05 Antidilution rights applicable to the Series C Preferred Stock
purchasable hereunder are set forth in the Corporation's Certificate of
Incorporation, as amended through the date hereof, a true and complete copy of
which has been furnished to Warrantholder (the "Charter"). The Corporation
shall promptly provide the Warrantholder with any restatement, amendment,
modification or waiver of the Charter and with any Certificate of Adjustment
sent to the holders of Series C Preferred Stock in accordance with the Charter
relating to any adjustment or readjustment of the Conversion Price of the Series
C Preferred Stock.
3. Payment of Exercise Price. The Exercise Price may be paid at the
--------------------------
Warrantholder's election either (i) by cash, certified or official bank check,
or wire transfer of funds to an account designated by the Corporation, or (ii)
by surrender of Warrants ("Net Issuance") as determined below. If the
Warrantholder elects the Net Issuance method, the Corporation shall issue Series
C Preferred Stock or Common Stock as follows:
(A) Prior to the Automatic Conversion Effective Time (as defined in Section
4), the Corporation shall issue Series C Preferred Stock in accordance with the
following formula:
X = (Y)(A-B)/A
Where: X = the number of shares of Series C Preferred Stock to
be issued to the Warrantholder
Y = the number of shares of Series C Preferred Stock
requested to be exercised under this Warrant
A = the current fair market value of one (1) share of
Series C Preferred Stock
B = the Exercise Price
-4-
As used herein, the current fair market value of a share of Series C
Preferred Stock shall mean the price per share which the Corporation could
obtain from a willing buyer for shares of Series C Preferred Stock, as
determined in good faith by the Corporation's Board of Directors, unless the
Corporation shall become subject to a merger, acquisition or other consolidation
pursuant to which the holders of Series C Preferred Stock receive securities
and/or other property in exchange for their Series C Preferred Stock, in which
case the fair market value of Series C Preferred Stock shall be deemed to be the
value of the securities and other property received by the holders of the
Corporation's Series C Preferred Stock per share of Series C Preferred Stock
pursuant to such merger, acquisition or other consolidation.
(B) Upon and after the Automatic Conversion Effective Time, the Corporation
shall issue Common Stock in accordance with the following formula:
X = (Y)(A-B)/A
Where: X = the number of shares of Common Stock to be issued to
the Warrantholder
Y = the number of shares of Common Stock requested to be
exercised under this Warrant
A = the fair market value of one (1) share of Common Stock
B = the Exercise Price
As issued herein, current fair market value of Common Stock shall mean with
respect to each share of Common Stock:
(i) if the exercise is in connection with the Corporation's initial
public offering of Common Stock, and if the Corporation's Registration
Statement relating to such public offering has been declared effective by
the SEC, then the initial "Price to Public" specified in the final
prospectus with respect to the offering;
(ii) if this Warrant is exercised after, and not in connection with,
the Corporation's initial public offering of Common Stock and
(a) if the Common Stock is traded on a national securities
exchange or quoted on the Nasdaq Stock Market, the fair market value
shall be deemed to be the average of the closing prices over a twenty-
one (21) day period ending three days before the day the current fair
market value of the Common Stock is being determined; or
(b) if the Common Stock is not listed on a national securities
exchange or quoted on the Nasdaq Stock Market but is actively traded
over-the-counter, the
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fair market value shall be deemed to be the average of the closing bid
and asked prices reported by the National Quotation Bureau (or similar
system) over the twenty-one (21) day period ending three days before
the day the current fair market value of the Common Stock is being
determined;
(iii) if at any time the Common Stock is not listed on any national
securities exchange or quoted on the Nasdaq Stock Market or actively traded
or in the over-the- counter market, the current fair market value of Common
Stock shall be the price per share which the Corporation could obtain from
a willing buyer (not a current employee or director) for shares of Common
Stock sold by the Corporation, from authorized but unissued shares, as
determined in good faith by its Board of Directors, unless the Corporation
shall become subject to a merger, acquisition or other consolidation
pursuant to which the holders of Common Stock receive securities and/or
other property in exchange for their Common Stock, in which case the fair
market value of Common Stock shall be deemed to be the value of the
securities and other property received by the holders of the Corporation's
Common Stock per share of Common Stock pursuant to such merger, acquisition
or other consolidation.
Upon partial exercise of this Warrant, the Corporation shall promptly issue
an amended Warrant representing the remaining number of shares purchasable
hereunder. All other terms and conditions of such amended Warrant shall be
identical to those contained herein, including, but not limited to the Effective
Date hereof.
4. Automatic Conversion of Series C Preferred Stock. If at any time the issued
-------------------------------------------------
and outstanding shares of the Corporation's Series C Preferred Stock shall be
automatically converted into shares of Common Stock under the terms of the
Charter, then upon and after the effective time of such automatic conversion of
the Series C Preferred Stock (the "Automatic Conversion Effective Time"), the
right to purchase Series C Preferred Stock granted herein shall terminate, and
this Warrant shall represent the right to purchase a number of shares of Common
Stock calculated as follows:
X = (Y)(Z)
where: X = the number of shares of Common Stock purchasable under
this Warrant upon and after such Automatic Conversion
Effective Time
Y = the number of shares of Series C Preferred Stock
purchasable under this Warrant immediately prior to
such Automatic Conversion Effective Time
Z = the number of shares of Common Stock issuable upon
conversion of each share of Series C Preferred Stock
immediately prior to such Automatic Conversion Effective
Time
-6-
and the Exercise Price per share of Common Stock shall be a price calculated
as follows:
A = (B)(X)/Y
where: A = the Exercise Price per share of Common Stock upon and
after such Automatic Conversion Effective Time
B = the Exercise Price per share of Series C Preferred Stock
immediately prior to such Automatic Conversion Effective
Time
X = the number of shares of Series C Preferred Stock
purchasable under this Warrant immediately prior to such
Automatic Conversion Effective Time
Y = the number of shares of Common Stock purchasable under
this Warrant upon and after such Automatic Conversion
Effective Time
Thereafter, the number of shares of Common Stock purchasable hereunder and
the Exercise Price per share shall be subject to adjustment for the types of
events described in Section 2 above that occur with respect to the Common Stock.
5. Restrictions. The Warrant Shares issuable u upon exercise of this Warrant
-------------
are subject to the terms and provisions of a Voting Agreement among the
Corporation and certain stockholders of the Corporation. The Corporation shall
furnish a copy of such Voting Agreement to any registered holder of this Warrant
or such Warrant Shares upon written request and without charge. Any certificate
or certificates representing Warrant Shares issued upon exercise of this Warrant
shall contain a legend to the foregoing effect.
6. Miscellaneous.
-------------
6.01 No Rights as Stockholder. This Warrant shall not entitle the
------------------------
Warrantholder to any voting rights or any other rights as a stockholder of the
Corporation, but upon presentation of this Warrant with the subscription form
annexed duly executed and the tender of payment of the Exercise Price at the
office of the Corporation pursuant to the provisions of this Warrant, the
Warrantholder shall forthwith be deemed a stockholder of the Corporation in
respect of the shares of Series C Preferred Stock or Common Stock so subscribed
and paid for.
6.02 Governing Law. This Warrant shall be governed by, and construed
-------------
and enforced in accordance with, the substantive laws of The Commonwealth of
Massachusetts, without regard to its principles of conflicts of laws.
6.03 Fractional Shares. No fractional shares or scrip representing
-----------------
fractional shares shall be issued upon exercise of this Warrant. If, upon
exercise of this Warrant, the
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Warrantholder would, except for the provisions of this Subsection 6.03, be
entitled to receive a fractional share of Series C Preferred Stock or Common
Stock, then the Corporation shall pay the exercising Warrantholder in cash an
amount equal to such fractional share multiplied by the fair market value (as
reasonably determined by the Corporation's Board of Directors) of one share of
Series C Preferred Stock or Common Stock, as the case may be.
6.04 Headings. The headings in the Warrant are inserted for
--------
convenience of reference only and shall not affect the interpretation of this
Warrant. Whenever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and the plural, and
pronouns stated in either the masculine or the neuter gender shall include the
masculine, the feminine and the neuter.
6.05 Substitution. In case this Warrant shall be mutilated, lost,
------------
stolen or destroyed, the Corporation shall issue a new Warrant of like tenor and
denomination and deliver the same (a) in exchange and substitution for and upon
surrender and cancellation of any mutilated Warrant, or (b) in lieu of any
Warrant lost, stolen or destroyed, upon receipt of evidence satisfactory to the
Corporation of the loss, theft, or destruction of such Warrant (including a
reasonably detailed affidavit with respect to the circumstances of any loss,
theft or destruction), and an indemnity agreement reasonably satisfactory to the
Corporation.
6.06 Modification. This Warrant and any term hereof may be changed,
------------
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is or may be sought.
IN WITNESS WHEREOF, the Corporation has caused this Stock Purchase Warrant
to be signed by its President thereunto duly authorized and its corporate seal
to be hereunto affixed and attested by its Secretary.
Dated: ________________________ SEQUENOM,, INC
(Corporate Seal)
Attest: By:___________________________
Its President
________________________________
Secretary
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WARRANTHOLDER'S ACCEPTANCE
--------------------------
The undersigned hereby accepts the foregoing warrant and agrees to the
terms and conditions thereof.
WARRANTHOLDER
By:____________________________
SUBSCRIPTION FORM
-----------------
The undersigned, the registered holder of the within Stock Purchase
Warrant, hereby irrevocably elects to exercise the purchase right represented by
such Warrant for, and to purchase thereunder, _______ shares of Series C
Convertible Preferred Stock, par value $.001 per share, of Sequenom, Inc., and
herewith makes payment of $ ____________ therefor and requests that the
certificates representing such shares be issued in the name of and delivered to
____________ and if such shares shall not include all of the shares issuable
under this Warrant, that a new Warrant of like tenor and date be delivered to
the undersigned for the shares not issued.
Dated:_______________________________ _______________________________
Name of Registered Holder
_______________________________
Authorized Signature
FORM OF ASSIGNMENT
------------------
For value received the undersigned hereby sells, assigns and transfers unto
________________________, whose address is __________________________________,
the within Stock Purchase Warrant with respect to _________ shares of Series C
Convertible Preferred Stock purchasable thereby, and does hereby irrevocably
constitute and appoint _______________ attorney to transfer the within Warrant
on the books of Sequenom, Inc. with full power of substitution in the premises.
Dated:__________________________ ______________________________
Name of Registered Holder
In the presence of:
________________________________ ______________________________
Authorized Signature
SCHEDULE OF INVESTORS
Number of Shares
Initial Investor Subject to Warrant
-----------------------------------------------------------------------------
TVM Techno Venture 7,606
Enterprises No. 11
Limited Partnership
x/x XXX Xxxxxx Xxxxxxx
Management ("TVM")
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
TVM Intertech 5,070
Limited Partnership
c/o TVM
TVM Zweite Beteiligung-US 15,212
Limited Partnership
x/x XXX
XXX Xxxxxxxx Xxxxxxx 00,000
Xxxxxxxxxxx
x/x XXX
XXX Techno Venture 825
Investors No. 1
Limited Partnership
c/o TVM
KBL Founder Ventures SCA 8,761
00, Xxxxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx International B.V. 31,746
Gooimeer 3
NL-1410 AB Naarden
The Netherlands
Xxxxxxx Xxxxxxxx 1,587
Xxxxxxxxxxxxx 0
00000 Xxxxxxx
Xxxxxxx
Xxxxxxx Xxxxxxxx, 22,222
as Trustee
Xxxxxxxxxxxxx 0
00000 Xxxxxxx
Xxxxxxx
Number of Shares
Initial Investor Subject to Warrant
-----------------------------------------------------------------------------
Xxxxx X. Xxxxx 1,666
Xxxxxxxx 00
X-00000 Xxxxxxxx
Xxxxxxx
Hannemarie Xxxxx 1,666
Xxxxxxxx 00
X-00000 Xxxxxxxx
Xxxxxxx
TOTAL 106,502
