WARRANT TO PURCHASE SHARES OF SERIES C-3 PREFERRED STOCK IN THE AMOUNT OF 1.875% OF THE ACTUAL LOAN AMOUNT
Exhibit 4.4
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, Oxford Finance 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:
X
= Y (A-B)
A
A
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, Holder 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 Holder. Holder represents and warrants to Company with
respect to this purchase as follows:
(i) Evaluation. Holder 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 | ||
| Xxxxx X0-000 | ||
| Xxxx Xxxxxxxxx, Xxxxxxx 00000 | ||
| Attn: Xxxx Xxxxxxx | ||
If to Holder:
|
Oxford Finance Corporation | |
| 000 Xxxxx Xxxxxxx Xxxxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: Chief Operating Officer & Executive Vice President | ||
With a copy to:
|
Oxford Finance Corporation | |
| 000 Xxxxx Xxxxxxx Xxxxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attention: Chief Operating Officer & Executive Vice President |
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.
OXFORD WARRANT
SIGNATURE PAGE
OXFORD WARRANT
SIGNATURE PAGE
NOTICE OF EXERCISE
To:
Endocyte, Inc.
0000 Xxxx Xxxxxx
Endocyte, Inc.
0000 Xxxx Xxxxxx
Xxxxx X0-000
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. | Holder 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 HOLDER] | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| Date: , 200 __ | ||||||||
