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EXHIBIT 4.4
[GRAPHIC]
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. NO SALE OR DISPOSITION MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH RULE
144 UNDER SAID ACT OR WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE COMPANY,
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION
LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.
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WARRANT TO PURCHASE 74,000 SHARES OF COMMON STOCK
December 6, 1996
THIS CERTIFIES THAT, for value received, Lease Management Services, Inc.,
("Holder") is entitled to subscribe for and purchase seventy-four thousand
($74,000) shares of the fully paid and nonassessable Common Stock ("the Shares")
of Xxxxxxx Pharmaceutical, Inc., a Delaware corporation (the "Company"), at the
Warrant Price (as hereinafter defined), subject to the provisions and upon the
terms and conditions hereinafter set forth. As used herein, the term "Common
Stock" shall mean the Company's presently authorized Common Stock, and any stock
into which such Common Stock may hereafter be exchanged.
1. Warrant Price. The Warrant Price shall be the lower of (I) three and 25/100
dollars ($3.250) per share or (ii) price per share obtained by the Company in
its next round of preferred stock financing in which the aggregate consideration
received by the Company is at least $1,000,000 or in its initial public offering
of its capital stock, which ever comes first.
2. Conditions to Exercise. The purchase right represented by this Warrant
may be exercised at any time, or from time to time, in whole or in part
during the term commencing on the date hereof and ending on the earlier of:
(a) 5:00 P.M. California time on the sixth annual anniversary of this
Warrant Agreement; or
(b) the effective date of the merger of the Company with or into, the
consolidation of the Company with, or the sale by the Company of all or
substantially all of its assets to another corporation or other entity
(other than such a transaction wherein the shareholders of the Company
retain or obtain a majority of the voting capital stock of the surviving,
resulting, or purchasing corporation); provided that the Company shall
notify the registered Holder of this Warrant of the proposed effective
date of the merger, consolidation, or sale at least 30 days prior to the
effectiveness thereof.
In the event that, although the Company shall have given notice of a
transaction pursuant to subparagraph (b) hereof, the transaction does not
close on approximately the day specified by the Company, unless otherwise
elected by the Holder any exercise of the Warrant subsequent to the giving
of such notice shall be rescinded and the Warrant shall again be
exercisable until terminated in accordance with this Paragraph 2.
3. Method of Exercise; Payment; Issuance of Shares; Issuance of New
Warrant.
(a) Cash Exercise. Subject to Section 2 hereof, the purchase right represented
by this Warrant may be exercised by the Holder hereof, in whole or in part, by
the surrender of this
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Warrant (with a duly executed Notice of Exercise in the form attached hereto) at
the principal office of the Company (as set forth in Section 18 below) and by
payment to the Company, by check, of an amount equal to the then applicable
Warrant Price per share multiplied by the number of shares then being purchased.
In the event of any exercise of the rights represented by this Warrant,
certificates for the shares of stock so purchased shall be in the name of, and
delivered to, the Holder hereof, or as such Holder may direct (subject to the
terms of transfer contained herein and upon payment by such Holder hereof of any
applicable transfer taxes). Such delivery shall be made within 10 days after
exercise of the Warrant and at the Company's expense and, unless this Warrant
has been fully exercised or expired, a new Warrant having terms and conditions
substantially identical to this Warrant and representing the portion of the
Shares, if any, with respect to which this Warrant shall not have been
exercised, shall also be issued to the Holder hereof within 10 days after
exercise of the Warrant.
(b) Net Issue Exercise. In lieu of exercising this Warrant pursuant to Section
3(a), Holder may elect to receive shares equal to the value of this Warrant (or
of any portion thereof remaining unexercised) by surrender of this Warrant at
the principal office of the Company together with notice of such election, in
which event the Company shall issue to Holder the number of shares of the
Company's Common Stock computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued to Holder.
Y = the number of shares of Common Stock purchasable under this
Warrant (at the date of such calculation).
A = the fair market value of one share of the Company's Common Stock
(at the date of such calculation).
B = Warrant exercise price (as adjusted to the date of such
calculation).
(c) Fair Market Value. For purposes of this Section 3, Fair Market Value of
one share of the Company's Common Stock shall mean:
(i) In the event of an Initial Public Offering, the per share Fair Market
Value for the Common Stock shall be the Offering Price at which the
underwriters sell Common Stock to the public; or
(ii) The average of the closing bid and asked prices of the Common Stock
quoted in the Over-The-Counter Market Summary, the last reported sale
price of the Common Stock or the closing price quoted on the Nasdaq
National Market System ("NMS") or on any exchange on which the Common
Stock is listed, whichever is applicable, as published in the Western
Edition of The Wall Street Journal for the ten (10) trading days prior to
the date of determination of fair market value; or
(iii) If the Company shall be subject to a merger, acquisition or other
consolidation in which the Company is not the surviving entity, pursuant
to Section 2(b), the per share Fair Market Value for the Common Stock
shall be the value received per share of Common Stock by all holders of
the Common Stock as determined by the Board of Directors; or
(iv) If the Common Stock is not publicly traded, the per share fair market
value of the Common Stock shall be as determined in good faith by the
Company's Board of
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Directors unless Holder elects to have such fair market value determined
by an appraiser, which election must be made by Holder within ten (10)
business days of the date the Company notifies Holder of the fair market
value as determined by its Board of Directors. In the event of such an
appraisal, the cost thereof shall be borne by the Holder unless such
appraisal results in a fair market value in excess of 115% of that
determined by the Company's Board of Directors, in which event the Company
shall bear the cost of such appraisal.
In the event of 3(c)(iii) or 3(c)(iv), above, the Company's Board of
Directors shall prepare a certificate, to be signed by an authorized
Officer of the Company, setting forth in reasonable detail the basis for
and method of determination of the per share Fair Market Value of the
Common Stock. The Board will also certify to the Holder that this per
share Fair Market Value will be applicable to all holders of the Company's
Common Stock. Such certification must be made to Holder at least thirty
(30) business days prior to the proposed effective date of the merger,
consolidation, sale, or other triggering event as defined in 3(c)(iii) and
3(c)(iv).
(d) Automatic Exercise. To the extent this Warrant is not previously exercised,
it shall be automatically exercised in accordance with Sections 3(b) and 3(c)
hereof (even if not surrendered) immediately before: the consummation of any
consolidation or merger of the Company, or any sale or transfer of a majority of
a company's assets pursuant to Section 2(b).
4. Representations and Warranties of Holder and Restrictions on Transfer
Imposed by the Securities Act of 1933.
(a) Representations and Warranties by Xxxxxx. The Holder represents and
warrants to the Company with respect to this purchase as follows:
(i) The Holder has substantial experience in evaluating and investing in
private placement transactions of securities of companies similar to the
Company so that the Holder is capable of evaluating the merits and risks
of its investment in the Company and has the capacity to protect its
interests.
(ii) The Holder is acquiring the Warrant and the Shares of Common Stock
issuable upon exercise of the Warrant (collectively the "Securities") for
investment for its own account and not with a view to, or for resale in
connection with, any distribution thereof. The Holder understands that the
Securities have not been registered under the Act by reason of a specific
exemption from the registration provisions of the Act which depends upon,
among other things, the bona fide nature of the investment intent as
expressed herein. In this connection, the Holder understands that, in the
view of the Securities and Exchange Commission (the "SEC"), the statutory
basis for such exemption may be unavailable if this representation was
predicated solely upon a present intention to hold the Securities for the
minimum capital gains period specified under tax statutes, for a deferred
sale, for or until an increase or decrease in the market price of the
Securities or for a period of one year or any other fixed period in the
future.
(iii) The Holder acknowledges that the Securities must be held
indefinitely unless subsequently registered under the Act or an exemption
from such registration is available. The Holder is aware of the provisions
of Rule 144 promulgated under the Act ("Rule 144") which permits limited
resale of securities purchased in a private placement subject to the
satisfaction of certain conditions, including, in case the securities have
been held for less than three years, the existence of a public market for
the shares, the availability of certain public information about the
Company, the resale
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occurring not less than two years after a party has purchased and paid for
the security to be sold, the sale being through a "broker's transaction"
or in a transaction directly with a "market maker" (as provided by Rule
144(f)) and the number of shares or other securities being sold during any
three-month period not exceeding specified limitations.
(iv) The Holder further understands that at the time the Holder wishes to
sell the Securities there may be no public market upon which such a sale
may be effected, and that even if such a public market exists, the Company
may not be satisfying the current public information requirements of Rule
144, and that in such event, the Holder may be precluded from selling the
Securities under Rule 144 unless a) a three-year minimum holding period
has been satisfied and b) the Holder was not at the time of the sale nor
at any time during the three-month period prior to such sale an affiliate
of the Company.
(v) The Holder has had an opportunity to discuss the Company's business,
management and financial affairs with its management and an opportunity to
review the Company's facilities. The Holder understands that such
discussions, as well as the written information issued by the Company,
were intended to describe the aspects of the Company's business and
prospects which it believes to be material but were not necessarily a
thorough or exhaustive description.
(b) Legends. Each certificate representing the Securities shall be endorsed
with the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 AND MAY NOT BE TRANSFERRED UNLESS COVERED BY AN EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT, A "NO ACTION" LETTER FROM THE
SECURITIES AND EXCHANGE COMMISSION WITH RESPECT TO SUCH TRANSFER, A
TRANSFER MEETING THE REQUIREMENTS OF RULE 144 OF THE SECURITIES AND
EXCHANGE COMMISSION, OR (IF REASONABLY REQUIRED BY THE COMPANY) AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
The Company need not register a transfer of Securities unless the conditions
specified in the foregoing legend are satisfied. The Company may also instruct
its transfer agent not to register the transfer of any of the Shares unless the
conditions specified in the foregoing legend are satisfied.
(c) Removal of Legend and Transfer Restrictions. The legend relating to the Act
endorsed on a certificate pursuant to paragraph 4(b) of this Warrant and the
stop transfer instructions with respect to the Securities represented by such
certificate shall be removed and the Company shall issue a certificate without
such legend to the Holder of the Securities if (i) the Securities are registered
under the Act and a prospectus meeting the requirements of Section 10 of the Act
is available or (ii) the Holder provides to the Company an opinion of counsel
for the Holder reasonably satisfactory to the Company, or a no-action letter or
interpretive opinion of the staff of the SEC reasonably satisfactory to the
Company, to the effect that public sale, transfer or assignment of the
Securities may be without registration and without compliance with any
restriction such as Rule 144.
5. Condition of Transfer or Exercise of Warrant. It shall be a condition to any
transfer or exercise of this Warrant that at the time of such transfer or
exercise, the Holder shall provide the Company with a representation in writing
that the Holder or transferee is acquiring this
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Warrant and the shares of Common Stock to be issued upon exercise, for
investment purposes only and not with a view to any sale or distribution, or a
statement of pertinent facts covering any proposed distribution. As a further
condition to any transfer of this Warrant or any or all of the shares of Common
Stock issuable upon exercise of this Warrant, other than a transfer registered
under the Act, the Company must have received a legal opinion, in form and
substance satisfactory to the Company and its counsel, reciting the pertinent
circumstances surrounding the proposed transfer and stating that such transfer
is exempt from the registration and prospectus delivery requirements of the Act.
Each certificate evidencing the shares issued upon exercise of the Warrant or
upon any transfer of the shares (other than a transfer registered under the Act
or any subsequent transfer of shares so registered) shall, at the Company's
option, contain a legend in form and substance satisfactory to the Company and
its counsel, restricting the transfer of the shares to sales or other
dispositions exempt from the requirements of the Act.
As further condition to each transfer, the transferee shall receive and
accept a Warrant, of like tenor and date, executed by the Company.
6. Stock Fully Paid; Reservation of Shares. All Shares which may be issued upon
the exercise of the rights represented by this Warrant will, upon issuance, be
fully paid and nonassessable, and free from all taxes, liens, and charges with
respect to the issue thereof. During the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have
authorized, and reserved for issuance upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of its Common Stock to
provide for the exercise of the rights represented by this Warrant.
7. Anti-Dilution Provisions, Adjustments Etc.
7.1 Adjustment for Stock Splits and Combinations. If the Company, at any
time or from time to time, effects a subdivision of, or combines, the
outstanding shares of Common Stock, by stock split or stock dividend or by
reverse stock split, respectively, then, and in each such event, the
Warrant Price in effect immediately prior thereto shall immediately be
proportionately decreased or increased, as the case may be, and the number
of shares of Common Stock issuable at that time upon exercise of this
warrant shall be proportionately increased or decreased, as the case may
be.
7.2 Adjustment for Recapitalization, Reclassification, or Exchange. If, at
any time or from time to time, the Common Stock issuable upon exercise of
this Warrant is changed into the same or a different number of shares of
any other class or classes of stock of the Company, whether by
recapitalization, reclassification or other exchange (other than as
provided for elsewhere in this Section 7), then, and in each such event,
the Holder shall have the right thereafter to purchase the kind and amount
of stock and other securities and property receivable upon such
recapitalization, reclassification or other exchange, by holders of the
number of shares of Common Stock with respect to which this Warrant might
have been exercised immediately prior to such recapitalization,
reclassification or other exchange, all subject to further adjustment as
provided herein.
7.3 Reorganization, Mergers, Consolidations or Transfer of Assets. If, at
any time or from time to time, there is a capital reorganization of the
Common Stock (other than as provided for elsewhere in this Section 7) or a
merger or consolidation of the Company with or into another corporation,
or a transfer of all or substantially all of the Company's assets to any
other person, then, and in, and as a part of, each such event, provision
shall be made so that the Holder shall thereafter be entitled to receive
upon
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exercise of this Warrant the number of shares of stock or other securities
or property of the Company, or, if applicable, of the resulting successor
corporation, to which a holder of the number of shares of Common Stock
issuable upon exercise of this Warrant would have been entitled on such
capital reorganization, merger, consolidation or transfer, all subject to
further adjustment as provided herein, and in, and as a part of, each such
event, in any such case, appropriate adjustment shall be made in the
application of the provisions of this Section 7 with respect to the rights
of the Holder after the reorganization, merger, consolidation or transfer
to the end that the provisions of this Section 7 (including adjustment of
the Warrant Price then in effect and the number of shares issuable upon
exercise of this Warrant) shall be applicable after that event and shall
be as nearly equivalent to the provisions hereof as may be practicable.
7.4 Adjustments for Sales of Securities Below Warrant Price.
7.4.1 If at any time or from time to time after the date hereof, the
Company issues or sells, or is deemed by the provisions of this Section
7.4 to have issued or sold, Additional Shares of Common Stock (as
hereinafter defined), other than as provided elsewhere in this Section
7, for an Effective Price (as hereinafter defined) less than the
Warrant Price, then, and in each such event, the Warrant Price shall be
reduced, as of the opening of business on the date of such issue or
sale, to a price determined by multiplying the Warrant Price by a
fraction (i) the numerator of which shall be (A) the number of shares
of Common Stock outstanding at the close of the business on the date
next preceding the date of such issue or sale, plus (B) the number of
shares of Common Stock which the aggregate consideration received (or
by express provision hereof deemed to have been received) by the
Company for the total number of Additional Shares of Common Stock so
issued would purchase at the Warrant Price, and (ii) the denominator of
which shall be the number of shares of Common Stock outstanding at the
close of business on the date of such issue or sale after giving effect
to such issue or sale of Additional Shares of Common Stock.
7.4.2 For the purposes of making any adjustment required under this
Section 7.4, the consideration received by the Company for any issue or
sale of securities shall (i) to the extent it consists of cash, be
computed at the net amount of cash received by the Company after
deduction of any underwriting or similar commissions, compensation, or
concessions paid or allowed by the Company in connection with such
issue or sale, (ii) to the extent it consists of property other than
cash, be computed at the fair value of that property as reasonably
determined by the Board of Directors of the Company in good faith as of
the date of such issuance and sale, and (iii) if Additional Shares of
Common Stock, Convertible Securities (as hereinafter defined) or rights
or options to Additional Shares of Common Stock or Convertible
Securities are issued or sold together with other stock or securities
or other assets of the Company for a consideration which covers both,
be computed as the portion of the consideration so received that may be
reasonably determined in good faith by the Board of Directors of the
Company to be allocable to such Additional Shares of Common Stock,
Convertible Securities or rights or options.
7.4.3 For the purpose of the adjustment required under this Section
7.4, if, at any time or from time to time after the date hereof, the
Company issues or sells any rights or options for the purchase of, or
stock or other securities convertible into, Additional Shares of Common
Stock (such convertible stock of securities being hereinafter referred
to as "Convertible Securities"), then, and in each such event, the
Company shall be deemed to have issued at the time of the issuance of
sale of such rights or options or Convertible Securities the maximum
number of Additional
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Shares of Common Stock issuable upon exercise or conversion thereof and
to have received as consideration for the issuance of such shares an
amount equal to (i) the total amount of the consideration, if any,
received by the Company for the issuance of such rights or options or
Convertible Securities, plus (ii) in the case of such options or
rights, the minimum amounts of consideration, if any, payable to the
Company upon the exercise or such options or rights, and, in the case
Convertible Securities, the minimum amounts of consideration, if any,
payable to the Company (other than by cancellation of liabilities or
obligations evidenced by such Convertible Securities) upon the
conversion of such Convertible Securities. No further adjustment of the
Warrant Price adjusted upon the issuance of such rights, options or
Convertible Securities shall be made as a result of the actual issuance
of Additional Shares of Common Stock upon the exercise of any such
rights or options or the conversion of any such Convertible Securities.
If any such rights or options or the conversion privilege represented
by any such Convertible Securities shall expire without having been
exercised in full, the Warrant Price adjusted upon the issuance of such
rights or options or Convertible Securities shall be readjusted to the
Warrant Price or Prices which would have been in effect had an
adjustment been required under this Section 7.4 and made on the basis
that only the Additional Shares of Common Stock, if any, actually
issued or sold upon the exercise of such rights or options or
conversion of such Convertible Securities were issued or sold, and such
Additional Shares of Common Stock, if any, were issued or sold for (i)
in the case of rights or options, the consideration actually received
by the Company upon such exercise plus the consideration, if any,
actually received by the Company for the granting of all such rights or
options, whether or not exercised, and (ii) in the case of Convertible
Securities, the consideration received for issuing or selling all such
Convertible Securities plus the consideration, if any, actually
received by the Company (other than by cancellation of liabilities or
obligations evidenced by such Convertible Securities) upon the
conversion of such Convertible Securities.
7.4.4 For the purpose of the adjustment required under this Section
7.4, if, at any time or from time to time after the date hereof, the
Company issues or sells any rights or options for the purchase of, or
convertible securities convertible into, Convertible Securities, then,
and in each such event, the Company shall be deemed to have issued, at
the time of the issuance or sale of such rights or options or such
convertible securities, the maximum number of Additional Shares of
Common Stock issuable upon conversion of all of the Convertible
Securities covered by such rights or options or such convertible
securities and to have received as Consideration for the issuance of
such Additional Shares of Common Stock an amount equal to (i) the
amount of consideration, if any, received by the Company for the
issuance of such rights or options or such convertible securities, plus
(ii) the minimum amount of consideration, if any, payable to the
Company upon the exercise of such rights or options (other than by
cancellation of liabilities or obligations evidenced by such
convertible securities), and plus (iii) the minimum amount of
consideration, if any, payable to the Company (other than by
cancellation of liabilities or obligations evidenced by such
Convertible Securities) upon the conversion of such Convertible
Securities. No further adjustment of the Warrant Price adjusted upon
the issuance of such rights or options or such convertible securities
shall be made as a result of the actual issuance of the Convertible
Securities upon the exercise of such rights or options or conversion of
such convertible securities or upon the actual issuance of additional
shares of Common Stock upon the conversion of such Convertible
Securities. The provisions of paragraph 7.3 above with respect to the
readjustment of the Warrant Price upon the expiration of rights or
options or the rights of conversion of Convertible Securities
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shall apply mutatis mutandis to the rights or options, convertible
securities and Convertible Securities referred to in this paragraph
7.4.
7.4.5 "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company after the date hereof, whether or
not subsequently reacquired or retired by the Company, other than
Common Stock (and options and rights to acquire Common Stock) as may be
issued to employees, officers, directors, consultants or other
individuals performing services for the Company pursuant to any stock
option, stock purchase or other equity incentive plan for employees or
other persons performing services for the Company and which plan is
approved by the Board of Directors. The "Effective Price" of Additional
Shares of Common Stock shall mean the quotient determined by dividing
the total number of Additional Shares of Common Stock issued or sold,
or deemed to have been issued or sold, by the Company under this
Section 7.4 into the aggregate consideration received or deemed to have
been received by the Company for such issue or sale under this Section
7.4.
7.5 Notices of Record Date. 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 (b) any capital reorganization of the Company,
any reclassification, recapitalization or exchange of the capital stock of
the Company, or any merger or consolidation of the Company with or into
another corporation, or any transfer of all or substantially all of the
assets of the Company to any other person, or any voluntary or involuntary
dissolution, liquidation or winding up of the Company, the Company shall
mail to the Holder, at least 10 days prior to the record date specified
therein, a notice specifying (x) the date on which any such record is to
be taken for the purpose of such dividend or distribution, (y) the date on
which any such reorganization, recapitalization, reclassification,
exchange, consolidation, merger, transfer, dissolution, liquidation or
winding up is expected to become effective, and (z) the time, if any, that
is to be fixed, as to when the holders of record of Common Stock (or other
securities) shall be entitled to exchange their shares of Common Stock (or
other securities) for securities or other property deliverable upon such
reorganization, recapitalization, reclassification, exchange,
consolidation, merger, transfer, dissolution, liquidation or winding up.
7.6 Reservation of Stock Issuable Upon Exercise. The Company at all times
reserve and keep available out of its authorized but unissued shares of
Common Stock such number of its shares of Common Stock as shall from time
to time be sufficient to effect the exercise of this Warrant and all other
rights or options to purchase Common Stock, and to permit the conversion
of all stock or other securities convertible into Common Stock, as may be
outstanding from time to time. If at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient for such purposes,
the Company will take such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for such
purposes.
8. Notice of Adjustments. Whenever any Warrant Price shall be adjusted pursuant
to Section 7 hereof, the Company shall prepare a certificate signed by its chief
financial officer setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated, and the Warrant Price and number of shares issuable upon
exercise of the Warrant after giving effect to such adjustment, and shall cause
copies of such certificate to be mailed (by certified or registered mail, return
receipt required, postage prepaid) within thirty (30) days of such adjustment to
the Holder of this warrant as set forth in Section 18 hereof.
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9. "Market Stand-Off" Agreement. Holder hereby agrees that for a period of up to
180 days following the effective date of the first registration statement of the
Company covering common stock (or other securities) to be sold on its behalf in
an underwritten public offering, it will not, to the extent requested by the
Company and any underwriter, sell or otherwise transfer or dispose of (other
than to donees or transferees who agree to be similarly bound) any of the Shares
at any time during such period except common stock included in such
registration; provided, however, that all officers and directors of the Company
who hold securities of the Company or options to acquire securities of the
Company and all other persons with registration rights enter into similar
agreements.
10. Transferability of Warrant. This Warrant is transferable on the books of the
Company at its principal office by the registered Holder hereof upon surrender
of this Warrant properly endorsed, subject to compliance with applicable federal
and state securities laws. The Company shall issue and deliver to the transferee
a new Warrant representing the Warrant so transferred. Upon any partial
transfer, the Company will issue and deliver to Holder a new Warrant with
respect to the Warrant not so transferred. Holder shall not have any right to
transfer any portion of this Warrant to any direct competitor of the Company.
11. No Fractional Shares. No fractional share of Common Stock will be issued in
connection with any exercise hereunder, but in lieu of such fractional share the
Company shall make a cash payment therefor upon the basis of the Warrant Price
then in effect.
12. Charges, Taxes and Expenses. Issuance of certificates for shares of Common
Stock upon the exercise of this Warrant shall be made without charge to the
Holder for any United States or state of the United States documentary stamp tax
or other incidental expense in respect of the issuance of such certificate, all
of which taxes and expenses shall be paid by the Company, and such certificates
shall be issued in the name of the Holder.
13. No Shareholder Rights Until Exercise. This Warrant does not entitle the
Holder hereof to any voting rights or other rights as a shareholder of the
Company prior to the exercise hereof.
14. Registry of Warrant. The Company shall maintain a registry showing the name
and address of the registered Holder of this Warrant. This Warrant may be
surrendered for exchange or exercise, in accordance with its terms, at such
office or agency of the Company, and the Company and Holder shall be entitled to
rely in all respects, prior to written notice to the contrary, upon such
registry.
15. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft, or
destruction, of indemnity reasonably satisfactory to it, and, if mutilated, upon
surrender and cancellation of this Warrant, the Company will execute and deliver
a new Warrant, having terms and conditions substantially identical to this
Warrant, in lieu hereof.
16. Miscellaneous.
(a) Issue Date. The provisions of this Warrant shall be construed
and shall be given effect in all respect as if it had been issued and
delivered by the Company on the date hereof.
(b) Successors. This Warrant shall be binding upon any successors
or assigns of the Company.
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(c) Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of California.
(d) Headings. The headings used in this Warrant are used for convenience
only and are not to be considered in construing or interpreting this
Warrant.
(e) Saturdays, Sundays, Holidays. If the last or appointed day for the
taking of any action or the expiration of any right required or granted
herein shall be a Saturday or a Sunday or shall be a legal holiday in the
State of California, then such action may be taken or such right may be
exercised on the next succeeding day not a legal holiday.
17. No Impairment. The Company will not, by amendment of its Articles of
Incorporation 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 hereof against impairment.
18. Addresses. Any notice required or permitted hereunder shall be in writing
and shall be mailed by overnight courier, registered or certified mail, return
receipt required, and postage pre-paid, or otherwise delivered by hand or by
messenger, addressed as set forth below, or at such other address as the Company
or the Holder hereof shall have furnished to the other party.
If to the Company: Xxxxxxx Pharmaceutical, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn:______________________________
If to the Holder: Lease Management Services, Inc.
0000 Xxxx Xxxx Xxxx, Xxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, EVP/GM
IN WITNESS WHEREOF, Xxxxxxx Pharmaceutical, Inc. has caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated as of December 6, 1996.
XXXXXXX PHARMACEUTICAL, INC.
BY: /s/ Xxxxxxx Xxxxxx
___________________________
TITLE: Chief Financial Officer
________________________
10
11
[GRAPHIC]
NOTICE OF EXERCISE
TO:
1. The undersigned Warrantholder ("Holder") elects to acquire shares of the
Common Stock of __________________ (the "Company"), pursuant to the terms
of the Stock Purchase Warrant dated ______, 199_ (the "Warrant").
2. The Holder exercises its rights under the Warrant as set forth below:
( ) The Holder elects to purchase ____________ shares of
Common Stock as provided in Section 3(a), (c) and
tenders herewith a check in the amount of $_____________
as payment of the purchase price.
( ) The Holder elects to convert the purchase rights into
shares of Common Stock as provided in Section 3(b),
(c) of the Warrant.
3. The Holder surrenders the Warrant with this Notice of Exercise.
4. The Holder represents that it is acquiring the aforesaid shares of Common
Stock for investment and not with a view to, or for resale in connection
with, distribution and that the Holder has no present intention of
distributing or reselling the shares.
5. Please issue a certificate representing the shares of Common Stock in the
name of the Holder or in such other name as is specified below:
Name:
Address:
Taxpayer I.D.:
__________________________________
(Holder)
By:_______________________________
Title:____________________________
Date:_____________________________
