WARRANT TO PURCHASE SHARES OF SERIES C-3 PREFERRED STOCK IN THE AMOUNT OF 1.875% OF THE ACTUAL LOAN AMOUNT
Exhibit 4.3
NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUBJECT TO SECTION 6 BELOW, 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 HOLDER, SATISFACTORY
TO COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE ACT OR RECEIPT OF A NO-ACTION LETTER
FROM THE SECURITIES AND EXCHANGE COMMISSION.
WARRANT
TO PURCHASE SHARES OF SERIES C-3 PREFERRED STOCK IN THE AMOUNT OF
1.875% OF THE ACTUAL LOAN AMOUNT
December 31, 2007
THIS CERTIFIES THAT, for value received, General Electric Capital Corporation
(“Holder”) is entitled to subscribe for and purchase SIXTY-SIX THOUSAND, ONE HUNDRED
SEVENTY-SEVEN (66,177) shares of fully paid and nonassessable Series C-3 Preferred Stock
of Endocyte, 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 “Preferred Stock” shall mean Company’s presently authorized
Series C-3 Preferred Stock, $0.001 par value per share, and any stock into which such
Preferred Stock may hereafter be converted or exchanged and the term “Warrant Shares” shall mean
the shares of Preferred Stock which Holder may acquire pursuant to this Warrant and any other
shares of stock into which such shares of Preferred Stock may hereafter be converted or
exchanged. This Warrant is issued in connection with that certain loan transaction entered
into as of an even date herewith between Company and Holder, and all
agreements entered into by the parties in connection therewith, including without limitation, the
Loan and Security Agreement, all promissory notes issued pursuant thereto and this Warrant are
collectively referred to as the “Loan Agreements”
1. Warrant Price. The “Warrant Price” shall initially be
Four and 25/100 dollars ($4.25) per share,
subject to adjustment as provided in Section 7 below.
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 at 5:00 P.M. Pacific time on the tenth anniversary of the date of this Warrant (the
“Expiration Date”).
3. Method of Exercise or Conversion; 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 Holder hereof, in whole or in part, by the surrender of the original of
this Warrant (together with a duly executed Notice of Exercise in substantially the form
attached hereto) at the principal office of Company (as set forth in Section 17 below) and by
payment to Company, by certified or bank check, or wire transfer of immediately available
funds, of an amount equal to the
then applicable Warrant Price per share multiplied by the number of Warrant 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, 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
30 days after exercise of this Warrant and at 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 Warrant Shares, if any, with
respect to which this Warrant shall not
have been exercised, shall also be issued to Holder hereof within 30 days after exercise of
this Warrant.
(b) Conversion. In lieu of exercising this Warrant as specified in Section
3(a), Holder may from
time to time convert this Warrant, in whole or in part, into Warrant Shares by surrender of the
original of this Warrant (together with a duly executed Notice of Exercise in substantially the
form attached hereto) at the principal office of Company, in which event Company shall issue to
Holder the number of Warrant Shares computed using the following formula:
Where:
X = the number of Warrant Shares to be issued to Holder.
Y = the number of Warrant Shares purchasable under this Warrant (at the date of such
calculation).
A = the Fair Market Value of one share of Company’s Preferred Stock (at the
date of such calculation).
B = Warrant 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
Company’s Preferred Stock shall mean:
(i) In the event of an exercise in connection with an Initial Public
Offering, the per share
Fair Market Value for the Preferred Stock shall be the offering
price at which the underwriters initially sell common stock of Company
(“Common Stock”) to the public multiplied by the number of shares of
Common Stock into which each share of Preferred Stock is then convertible; or
(ii) The average of the closing bid and asked prices of Common Stock quoted
in the
Over-The-Counter Market Summary, the last reported sale price quoted on the Nasdaq
Stock Market or on any other exchange on which the Common Stock is listed, whichever is
applicable, as published in the Western Edition of the Wall Street
Journal for the three (3) trading days prior to the date of
determination of Fair Market Value, multiplied by the number of shares of Common Stock into
which each share of Preferred Stock is then convertible; or
(iii) In the event of an exercise in connection with a merger, acquisition
or other
consolidation in which Company is not the surviving entity, the per share
Fair Market Value for the Preferred Stock shall be the value to be received per share of
Preferred Stock by all holders of the Preferred Stock in such transaction as determined by
the Board of Directors; or
(iv) In any other instance, the per share Fair Market Value for the
Preferred Stock shall be
as determined in the reasonable good faith judgment of Company’s Board of Directors.
In the event of Sections 3(c)(iii) or 3(c)(iv), above, Company’s Board of Directors shall prepare a
certificate, to be signed by an authorized officer of Company, setting forth in reasonable detail
the basis for and method of determination of the per share Fair Market Value of the Preferred
Stock. The Board of Directors will also certify to Holder that this per share Fair Market Value
will be applicable to all holders of Company’s Preferred Stock. Such certification must be made to
Holder at least
2
thirty (30) business days prior to the proposed effective date of the merger, consolidation, sale,
or other triggering event as defined in Sections 3(c)(iii) or 3(c)(iv).
(d) Automatic Exercise. To the extent this Warrant is not previously
exercised, it shall be deemed to have been automatically exercised in accordance with Sections
3(b) and 3(c) hereof (even if not surrendered) as of immediately before its expiration,
involuntary termination or cancellation if the then-Fair Market Value of a Warrant Share exceeds
the then-Warrant Price, unless Holder notifies Company in writing to the contrary prior to such
automatic exercise.
(e) Treatment of Warrant Upon Acquisition of Company.
(i) Certain Definitions. For the purpose of this Warrant, “Acquisition”
means any sale, license, or other disposition of all or substantially all of the assets of
Company, or any reorganization, consolidation, or merger of Company, or sale of outstanding
Company securities by holders thereof, where the holders of Company’s securities before the
transaction beneficially own less than a majority of the outstanding voting securities of
the successor or surviving entity after the transaction. For purposes of this Section 3(e),
“Affiliate” shall mean any person or entity that owns or controls directly or indirectly ten
percent (10%) or more of the voting capital stock of Company, any person or entity that
controls or is controlled by or is under common control with such persons or entities, and
each of such person’s or entity’s officers, directors, joint venturers or partners, as
applicable.
(ii) Cash Acquisition. In the event of an Acquisition in which the sole
consideration is cash, Holder may either (a) exercise its conversion or purchase right under
this Warrant and such exercise will be deemed effective immediately prior to the
consummation of such Acquisition or (b) permit the Warrant to expire upon the consummation
of such Acquisition. Company shall provide Holder with written notice of any proposed
Acquisition together with such reasonable information as Holder may request in connection
with such contemplated Acquisition giving rise to such notice, which is to be delivered to
Holder not less than ten (10) business days prior to the closing of the proposed
Acquisition.
(iii) Asset Sale. In the event of an Acquisition that is an arms length
sale of all or substantially all of Company’s assets (and only its assets) to a third party
that is not an Affiliate of Company (a “True Asset Sale”), Holder may either (a) exercise
its conversion or purchase right under this Warrant and such exercise will be deemed
effective immediately prior to the consummation of such Acquisition or (b) permit the
Warrant to continue until the Expiration Date if Company continues as a going concern
following the closing of any such True Asset Sale. Company shall provide Holder with written
notice of any proposed asset sale together with such reasonable information as Holder may
request in connection with such asset sale giving rise to such notice, which is to be
delivered to Holder not less than ten (10) business days prior to the closing of the
proposed asset sale.
(iv) Public Acquisition. Except with respect to an Acquisition subject
to the terms and conditions of either Section 3(e)(ii) or Section 3(e)(iii) above, Xxxxxx
agrees that, in the event of an Acquisition of the Company by a publicly traded acquirer if
the acquirer in the Acquisition does not agree to assume this Warrant at and as of the
closing thereof, the Company may require this Warrant to be deemed automatically exercised
and Holder shall participate in the Acquisition as a holder of the Shares (or other
securities issuable upon exercise of this Warrant) on the same terms as other holders of
the same class of securities of the Company.
3
(v) Assumption of Warrant. Upon the closing of any Acquisition
other than those
particularly described in subsections (ii) and (iii) above, the successor entity shall
assume the obligations of this Warrant, and this Warrant shall be exercisable for the
same securities, cash, and property as would be payable for the Warrant Shares
issuable upon exercise of the unexercised portion of this Warrant as if such Warrant
Shares were outstanding on the record date for the Acquisition and subsequent closing.
The Warrant Price and/or number of Warrant Shares shall be adjusted accordingly.
4. Representations and Warranties of Holder and Company.
(a) Representations and Warranties by Xxxxxx. Holder represents
and warrants to Company with
respect to this purchase as follows:
(i) Evaluation. Xxxxxx has substantial experience in
evaluating and investing in private placement transactions of securities of companies
similar to Company so that Holder is capable of evaluating the merits and risks of its
investment in Company and has the capacity to protect its interests.
(ii) Resale. Except for transfers to an affiliate of
Holder, Holder is acquiring this Warrant and the Warrant Shares issuable upon exercise
of this 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.
(iii) Rule 144. 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.
(iv) Accredited Investor. The Holder is an
“accredited investor” within the meaning of Regulation D promulgated under the Act.
(v) Opportunity To Discuss. The Holder has had an
opportunity to discuss Company’s business, management and financial affairs with its
management and an opportunity to review Company’s facilities. The Holder understands
that such discussions, as well as the written information issued by Company, were
intended to describe the aspects of Company’s business and prospects which Company
believes to be material but were not necessarily a thorough or exhaustive description.
(b) Representations and Warranties by Company. Company hereby represents
and warrants to
Holder that the statements in the following paragraphs of this Section 4(b) are true and
correct as of the date hereof.
(i) Corporate Organization and Authority. Company (a)
is a corporation duly organized, validly existing, and in good standing in its
jurisdiction of incorporation, (b) has the corporate power and authority to own and
operate its properties and to carry on its business as now conducted and as proposed
to be conducted; and (c) is qualified as a foreign corporation in all jurisdictions
where such qualification is required.
4
(ii) Corporate Power . Company has all requisite legal
and corporate power and authority
to execute, issue and deliver this. Warrant, to issue the Warrant Shares
issuable upon exercise or conversion of this Warrant, and to carry out and perform its
obligations under this Warrant.
(iii) Authorization; Enforceability. All corporate action on the
part of Company, its officers, directors and shareholders necessary for the
authorization, execution, delivery and performance of its obligations under this
Warrant and for the authorization, issuance and delivery of this Warrant and the
Warrant Shares issuable upon exercise of this Warrant has been taken and this Warrant
constitutes the legally binding and valid obligation of Company enforceable in
accordance with its terms.
(iv) Valid Issuance of Warrant and Warrant Shares. This Warrant
has been validly issued and is free of restrictions on transfer other than
restrictions on transfer set forth herein and under applicable state and federal
securities laws. The Warrant Shares issuable upon exercise of this Warrant, when
issued. sold and delivered in accordance with the terms of this Warrant for the
consideration expressed herein, will be duly and validly issued, fully paid and
nonassessable, and will be free of restrictions on transfer other than restrictions on
transfer under this Warrant and under applicable state and federal securities laws.
Subject to applicable restrictions on transfer, the issuance and delivery of this
Warrant and the Warrant Shares issuable upon exercise or conversion of this Warrant
are not subject to any preemptive or other similar rights or any liens or encumbrances
except as specifically set forth in Company’s Certificate of Incorporation or this
Warrant. The offer, sale and issuance of the Warrant Shares, as contemplated by this
Warrant, are exempt from the prospectus and registration requirements of applicable
United States federal and state security laws, and neither Company nor any authorized
agent acting on its behalf has or will take any action hereafter that would cause the
loss of such exemption.
(v) No Conflict. The execution, delivery, and performance of this
Warrant will not result in (a) any violation of, be in conflict with, or constitute a
default under, with or without the passage of time or the giving of notice (1) any
provision of Company’s Certificate of Incorporation or by-laws; (2) any provision of
any judgment, decree, or order to which Company is a party, by which it is bound, or
to which any of its material assets are subject; (3) any contract, obligation, or
commitment to which Company is a party or by which it is bound; or (4) any statute,
rule, or governmental regulation applicable to Company, or (b) the creation of any
lien, charge or encumbrance upon any assets of Company.
(vi) Capitalization. The capitalization table of Company attached
hereto as Annex A is complete and accurate as of the date hereof (after giving effect
to the issuance of this Warrant) and reflects (a) all outstanding capital stock of
Company and (b) all outstanding warrants, options, conversion privileges, preemptive
rights or other rights or agreements to purchase or otherwise acquire or issue any
equity securities or convertible securities of Company. Company has reserved all
shares of Common Stock for issuance upon conversion of the Preferred Stock.
(vii) Warrant Price. The Warrant Price is no greater than the
lowest price at which Company has issued Series C-3 Preferred Stock to an unrelated
third party in an arm’s length transaction.
5
5. Legends.
(a) Legend. Each certificate representing the Warrant Shares shall be
endorsed with substantially the following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY
NOT BE TRANSFERRED (UNLESS SUCH TRANSFER IS TO AN AFFILIATE OF HOLDER) 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 COMPANY) AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER TO
THE EFFECT THAT ANY SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION.
Company need not enter into its stock records a transfer of Warrant Shares unless the
conditions specified in the foregoing legend are satisfied. Company may also instruct its
transfer agent not to allow the transfer of any of the Warrant Shares unless the conditions
specified in the foregoing legend are satisfied.
(b) Removal of Legend and Transfer Restrictions. The
legend relating to the Act endorsed on a certificate pursuant to paragraph 5(a) of this
Warrant shall be removed and Company shall issue a certificate without such legend to Holder
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) Holder provides to Company an opinion of
counsel for Holder reasonably satisfactory to Company, a no-action letter or interpretive
opinion of the staff of the Securities and Exchange Commission (“SEC”) reasonably
satisfactory to Company, or other evidence reasonably satisfactory to Company, to the effect
that sale, transfer or assignment of the Securities may be made without registration and
without compliance with any restriction such as Rule 144.
(c) “Market Stand-Off’ Agreement. Holder (and its
affiliates) hereby agrees that it shall bound by the same “Market Standoff Provision”
contained in the Third Amended and Restated Investors’ Rights Agreement dated as of March 9,
2007, of Company (the “Registration Rights Agreement”), and that the Warrant Shares shall be
similarly bound under the Registration Rights Agreement.
6. 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, Holder shall provide Company with a
representation
in writing that Holder or transferee is acquiring this Warrant and the shares of Preferred Stock to
be issued
upon exercise for investment purposes only and not with a view to any sale or distribution, or will
provide
Company with 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 Preferred Stock issuable upon exercise
of this
Warrant, other than a transfer registered under the Act, Company may request a legal opinion, in
form and
substance satisfactory to 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. Company shall not require Holder to provide an opinion of counsel if the
transfer is
to an affiliate of Holder. Each certificate evidencing the Warrant Shares issued upon exercise of
this
Warrant or upon any transfer of the Warrant Shares (other than a transfer registered under the Act
or any
subsequent transfer of shares so registered) shall, at Company’s option, if the Warrant Shares are
not freely
saleable under Rule 144(k) under the Act, contain a legend in form and substance satisfactory to
Company
and its counsel, restricting the transfer of the Warrant Shares to sales or other dispositions
exempt from the
requirements of the Act. As further condition to each transfer, at the request of Company, Holder
shall
6
surrender this Warrant to Company and the transferee shall receive and accept a Warrant, of
like tenor and date, executed by Company. As of June 1, 2008, if (a) Holder does not fund Holder’s
Pro Rata Share (as defined in the Loan and Security Agreement) of the Subsequent Term Loan (as
defined in the Loan and Security Agreement) despite Company’s request in compliance with Section
2.2 of the Loan and Security Agreement and (b) such failure to fund was solely a result of
Holder’s unexcused breach of its obligation to fund, this Warrant shall thereafter be exercisable
only with respect to a number of Warrant Shares equal to (i) the aggregate principal amount of the
Holder’s actual advances pursuant to such Holder’s Total Commitment (as defined in the Loan and
Security Agreement), divided by such Holder’s Pro Rata Share of the Total Commitment (as defined
in the Loan and Security Agreement) actually advanced or requested pursuant to the Loan and
Security Agreement, multiplied by (ii) 66,147; provided, however, if (a) Company does not request
a Subsequent Term Loan on or before June 1, 2008 pursuant to Section 2.2 of the Loan and Security
Agreement, or (b) Holder has no obligation to fund Holder’s Pro Rata Share of the Subsequent Term
Loan for any reason, including, without limitation, Company’s failure to satisfy any conditions
provided pursuant to Section 4.2 of the Loan and Security Agreement, then the foregoing limitation
on the exercisability of this Warrant will be of no force or effect.
7. Adjustment for Certain Events. The number and kind of securities purchasable upon the
exercise of
this Warrant and the Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Reclassification or Merger. In case of (i) any reclassification or
change of securities of the class issuable upon exercise of this Warrant (other than a
change in par value, or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination), (ii) any merger of Company with or into
another corporation (other than a merger with another corporation in which Company is the
acquiring and the surviving corporation and which does not result in any reclassification or
change of outstanding securities issuable upon exercise of this Warrant), or (iii) any sale
of all or substantially all of the assets of Company, Company, or such successor or
purchasing corporation, as the case may be, shall duly execute and deliver to Holder a new
Warrant (in form and substance satisfactory to Holder of this Warrant), or Company shall
make appropriate provision without the issuance of a new Warrant, so that Holder shall have
the right to receive, at a total purchase price not to exceed that payable upon the exercise
of the unexercised portion of this Warrant, and in lieu of the Warrant Shares theretofore
issuable upon exercise or conversion of this Warrant, the kind and amount of shares of
stock, other securities, money and property receivable upon such reclassification, change,
merger or sale by a holder of the number of shares of Preferred Stock then purchasable under
this Warrant, or in the case of such a merger or sale in which the consideration paid
consists all or in part of assets other than securities of the successor or purchasing
corporation, at the option of Holder, the securities of the successor or purchasing
corporation having a value at the time of the transaction equivalent to the value of the
Warrant Shares purchasable upon exercise of this Warrant at the time of the transaction. Any
new Warrant shall provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 7. The provisions of this
subparagraph (a) shall similarly apply to successive reclassifications, changes, mergers and
transfers.
(b) Subdivision or Combination of Shares. If Company at any time while
this Warrant remains outstanding and unexpired shall subdivide or combine its outstanding
shares of Preferred Stock, the Warrant Price shall be proportionately decreased and the
number of Warrant Shares issuable hereunder shall be proportionately increased in the case
of a subdivision and the Warrant Price shall be proportionately increased and the number of
Warrant Shares issuable hereunder shall be proportionately decreased in the case of a
combination.
7
(c) Stock Dividends and Other Distributions. If Company at any time
while this Warrant is outstanding and unexpired shall (i) pay a dividend with respect to
Preferred Stock payable in Preferred Stock, then the Warrant Price shall be adjusted, from
and after the date of determination of shareholders entitled to receive such dividend or
distribution, to that price determined by multiplying the Warrant Price in effect immediately
prior to such date of determination by a fraction (A) the numerator of which shall be the
total number of shares of Preferred Stock outstanding immediately prior to such dividend or
distribution, and (B) the denominator of which shall be the total number of shares of
Preferred Stock outstanding immediately after such dividend or distribution; or (ii) make any
other distribution with respect to Preferred Stock (except any distribution specifically
provided for in Sections 7(a) and 7(b)), then, in each such case, provision shall be made by
Company such that Holder shall receive upon exercise of this Warrant a proportionate share of
any such dividend or distribution as though it were Holder of the Warrant Shares as of the
record date fixed for the determination of the shareholders of Company entitled to receive
such dividend or distribution.
(d) Adjustment of Number of Shares. Upon each adjustment in the Warrant
Price, the number of Warrant Shares purchasable hereunder shall be adjusted, to the nearest
whole share, to the product obtained by multiplying the number of Warrant
Shares purchasable immediately prior to such adjustment in the Warrant Price by a fraction,
the numerator of which shall be the Warrant Price immediately prior to such adjustment and
the denominator of which shall be the Warrant Price immediately thereafter
(e) Adjustment for Dilutive Issuance. The Warrant Price and the number
of Warrant Shares issuable upon exercise of this Warrant or, if the Warrant Shares are
Preferred Stock, the number of shares of Common Stock issuable upon conversion of the Warrant
Shares, shall be subject to adjustment, from time to time in the manner set forth in
Company’s Certificate of Incorporation as if the Warrant Shares were issued and
outstanding on and as of the date of any such required adjustment. The
provisions set forth for the Warrant Shares in Company’s Certificate of Incorporation
relating to the above in effect as of the date hereof may not be amended,
modified or waived, without the prior written consent of Holder unless such amendment,
modification or waiver affects the rights associated with the Warrant Shares in the same
manner as such amendment, modification or waiver affects the rights associated with all other
shares of the same series and class as the Warrant Shares.
8. Notice of Adjustments. Whenever any Warrant Price or the kind or number of
securities issuable under this Warrant shall be adjusted pursuant to Section 7 hereof, Company
shall prepare a certificate signed by an officer of Company 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 or kind of
shares issuable upon exercise of this 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 Holder as set forth in
Section 17 hereof.
9. Financial and Other Reports. From time to time up to the earlier of the
Expiration Date, the complete exercise of this Warrant, or the date upon which Company becomes
subject to the reporting requirements of the Securities and Exchange Act of 1934, as amended,
Company shall furnish to Holder (a) unaudited consolidated and, if available, consolidating balance
sheets, statements of operations and cash flow statements within 45 days of each month end, in a
form acceptable to Holder and certified by Company’s president or chief financial officer, and (b)
Company’s complete annual audited consolidated and, if available, consolidating balance sheets,
statements of operations and cash flow statements certified by an independent certified public
accountant selected by Company and satisfactory to Holder within 120 days of the fiscal year end
or, if sooner, at such time as Company’s Board of Directors receives the audit.
8
10. Transferability of Warrant. This Warrant is transferable on the books of
Company at its principal office by the registered Holder hereof upon surrender of this Warrant
properly endorsed, subject to compliance with Section 6 and applicable federal and state
securities laws. Company shall issue and deliver to the transferee a new Warrant representing the
Warrant so transferred. Upon any partial transfer, 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 Company, as determined by the
Board of Directors.
11. Registration Rights. Company grants registration rights to Holder of this
Warrant for any Common Stock of Company obtained by Holder upon exercise or conversion of this
Warrant, or subsequent conversion of the Preferred Stock, in parity to the registration rights
granted to other holders of the Preferred Stock and agrees that Holder shall be added as a party
to the Registration Rights Agreement, and that the Warrant Shares shall be “Registrable
Securities” under the Registration Rights Agreement.
12. No Fractional Shares. No fractional share of Preferred Stock will be
issued in connection with any exercise or conversion hereunder, but in lieu of such fractional
share Company shall make a cash payment therefor upon the basis of the Warrant Price then
in effect.
13. Charges, Taxes and Expenses. Issuance of certificates for shares of
Preferred Stock upon the exercise or conversion of this Warrant shall be made without charge to
Holder for any United States or state of the United States documentary stamp tax or other
incidental expense with respect to the issuance of such certificate, all of which
taxes and expenses shall be paid by Company, and such certificates shall be issued in the name of
Holder.
14. No Shareholder Rights Until Exercise. Except as expressly provided
herein, this Warrant does not entitle Holder to any voting rights or other rights as
a shareholder of Company prior to the exercise hereof.
15. Registry of Warrant. 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 Company, and Company and
Holder shall be entitled to rely in all respects, prior to written notice to the contrary, upon
such registry.
16. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by
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,
Company will execute and deliver a new Warrant, having terms and conditions substantially
identical to this Warrant, in lieu hereof.
17. 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 Company on
the date hereof.
(b) Successors. This Warrant shall be binding upon any successors or
assigns of Company.
(c) Headings. The headings used in this Warrant are used for
convenience only and are not to be considered in construing or interpreting this Warrant.
(d) 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
9
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.
(e) Attorney’s Fees. In the event of any dispute between the parties
concerning the terms and
provisions of this Warrant, the party prevailing in such dispute shall be entitled to
collect from the other party all costs incurred in such dispute, including reasonable
attorney’s fees.
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 requested, and postage prepaid, or
otherwise delivered by hand or by messenger, addressed as set forth below, or at such other
address as Company or Holder hereof shall have furnished to the other party in accordance with the
delivery instructions set forth in this Section 17.
If to Company:
|
Endocyte, Inc. | |
| 0000 Xxxx Xxxxxx | ||
| Suite A1-100 | ||
| West Lafayette, Indiana 47906 | ||
| Attn: Xxxx Xxxxxxx | ||
If to Holder:
|
General Electric Capital Corporation | |
| c/o GE Healthcare Financial Services, Inc., LSF | ||
| 00 Xxxxxxx Xxxxxxx Xxxx, Xxxxx Floor | ||
| Danbury, Connecticut 06810 | ||
| Attn: Senior Vice President of Risk | ||
With a copy to:
|
General Electric Capital Corporation | |
| c/o GE Healthcare Financial Services, Inc. | ||
| Two Bethesda Metro Center, Suite 600 | ||
| Bethesda, Maryland 20814 | ||
| Attn: General Counsel |
If mailed by registered or certified mail, return receipt requested, and postage prepaid,
notice shall be deemed to be given five (5) days after being sent, and if sent by overnight
courier, by hand or by messenger, notice shall be deemed to be given when delivered (if on a
business day, and if not, on the next business day).
18. No Impairment. Company will not, by amendment of its Certificate 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 Holder hereof against impairment. Without limiting the breadth of
the foregoing, Company will not cause the Series C-3 Preferred Stock into which this Warrant is
exercisable or convertible to be converted into Common Stock unless such conversion is effected as
part of the conversion of all Company’s outstanding series of preferred stock and other senior
securities into Common Stock.
19. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS WARRANT OR THE WARRANT SHARES.
10
20. GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE.
[Remainder of page intentionally left blank]
11
IN WITNESS WHEREOF, Company has caused this Warrant to be executed by its officer
thereunto duly authorized.
| ENDOCYTE, INC. | ||||
By:
|
/s/ Xxxx Xxxxxxx | |||
| Name: Xxxx Xxxxxxx | ||||
| Title: Chief Financial Officer | ||||
Dated as of December 31, 2007.
ENDOCYTE, INC.
GECC WARRANT
SIGNATURE PAGE
GECC WARRANT
SIGNATURE PAGE
NOTICE OF EXERCISE
To:
Endocyte, Inc.
0000 Xxxx Xxxxxx
Endocyte, Inc.
0000 Xxxx Xxxxxx
Suite Al-000
Xxxx Xxxxxxxxx, Xxxxxxx 00000
Attn:
Xxxx Xxxxxxxxx, Xxxxxxx 00000
Attn:
| 1. | The undersigned Warrantholder (“Holder”) elects to acquire shares of the Series C-3 Preferred Stock (the “Preferred Stock”) of Endocyte, Inc. (the “Company”), pursuant to the terms of the Stock Purchase Warrant dated December 2007 (the “Warrant”). | |
| 2. | Holder exercises its rights under the Warrant as set forth below: |
| ( ) | Holder elects to purchase _________ shares of Preferred Stock as provided in Section 3(a) and tenders herewith a check in the amount of $_______ as payment of the purchase price. |
| Holder elects to convert the purchase rights into shares of Preferred Stock as provided in Section 3(b) of the Warrant. |
| 3. | Xxxxxx surrenders the Warrant with this Notice of Exercise. |
Holder represents that it is acquiring the aforesaid shares of Preferred Stock for investment
and not with a view to or for resale in connection with distribution and that Holder has no
present intention of distributing or reselling the shares.
Please issue a certificate representing the shares of the Preferred Stock in the name of Holder
or in such other name as is specified below:
Name:
Address:
Taxpayer I.D.:
| [NAME OF XXXXXX] | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Date: , 200__ | ||||||
