EXHIBIT 4.5
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FORM OF WARRANT
GENELABS TECHNOLOGIES, INC.
WARRANT TO PURCHASE COMMON STOCK
No. __-_______ _______, 200__
VOID AFTER ______, 200__
THIS CERTIFIES THAT, for value received, [PURCHASER], with its
principal office at [ADDRESS], or assigns (the "Holder"), is entitled to
subscribe for and purchase at the Exercise Price (defined below) from GENELABS
TECHNOLOGIES, INC., a California corporation, with its principal office at 000
Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx, XX 00000 (the "Company") _____ shares of the
Common Stock of the Company as provided herein (the "Common Stock").
1. DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
(a) "Exercise Period" shall mean the period commencing with the
date hereof and ending ____ years from the date hereof, unless sooner
terminated as provided below.
(b) "Exercise Price" shall mean $____ per share, subject to
adjustment pursuant to Section 5 below.
(c) "Exercise Shares" shall mean the shares of the Company's
Common Stock issuable upon exercise of this Warrant.
2. EXERCISE OF WARRANT. The rights represented by this Warrant may be
exercised in whole or in part at any time during the Exercise Period, by
delivery of the following to the Company at its address set forth above (or at
such other address as it may designate by notice in writing to the Holder):
(a) An executed Notice of Exercise in the form attached hereto;
(b) Payment of the Exercise Price either (i) in cash or by
check, or (ii) by cancellation of indebtedness; and
(c) This Warrant.
Upon the exercise of the rights represented by this Warrant, a
certificate or certificates for the Exercise Shares so purchased, registered in
the name of the Holder or persons affiliated with the Holder, if the Holder so
designates, shall be issued and delivered to the Holder within a reasonable time
after the rights represented by this Warrant shall have been so exercised.
The person in whose name any certificate or certificates for Exercise
Shares are to be issued upon exercise of this Warrant shall be deemed to have
become the holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the date
of delivery of such certificate or certificates, except that, if the date of
such surrender and payment is a date when the stock transfer books of the
Company are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
2.1 Net Exercise. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company's Common Stock
is greater than the Exercise Price (at the date of calculation as set forth
below), in lieu of exercising this Warrant by payment of cash, the Holder may
elect to receive shares equal to the value (as determined below) of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant
at the principal office of the Company together with the properly endorsed
Notice of Exercise in which event the Company shall issue to the Holder a
number of shares of 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
the Holder
Y = the number of shares of Common Stock purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being canceled (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 = Exercise Price (as adjusted to the date of such
calculation)
For purposes of the above calculation, the fair market value of one
share of Common Stock shall be determined by the Company's Board of Directors in
good faith.
3. COVENANTS OF THE COMPANY.
3.1 Covenants as to Exercise Shares. The Company covenants and agrees
that all Exercise Shares that may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued and
outstanding, fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issuance thereof. The Company further covenants
and agrees that the Company will at all times during the Exercise Period, have
authorized and reserved, free from preemptive rights, a sufficient number of
shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant. If at any time during the Exercise Period the
number of authorized but unissued shares of Common Stock shall not be
sufficient to permit exercise of this Warrant, 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.
3.2 No Impairment. Except and to the extent as waived or consented to
by the Holder, the Company will not, by amendment of its Articles of
Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by the Company, but will at
all times in good faith assist in the carrying out of all the provisions of
this Warrant and in the taking of all such action as may be necessary or
appropriate in order to protect the exercise rights of the Holder against
impairment.
3.3 Notices of Record Date. In the event of 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
(other than a cash dividend which is the same as cash dividends paid in
previous quarters) or other distribution, the Company shall mail to the
Holder, at least ten (10) days prior to the date specified herein, a notice
specifying the date on which any such record is to be taken for the purpose of
such dividend or distribution.
4. REPRESENTATIONS OF HOLDER.
4.1 Acquisition of Warrant for Personal Account. The Holder
represents and warrants that it is acquiring the Warrant solely for its
account for investment and not with a view to or for sale or distribution of
said Warrant or any part thereof. The Holder also represents that the entire
legal and beneficial interests of the Warrant and Exercise Shares the Holder
is acquiring is being acquired for, and will be held for, its account only.
5. ADJUSTMENT OF EXERCISE PRICE. In the event of changes in the
outstanding Common Stock of the Company by reason of stock dividends,
split-ups, recapitalizations, reclassifications, combinations or exchanges of
shares, separations, reorganizations, liquidations, or the like, the number
and class of shares available under the Warrant in the aggregate and the
Exercise Price shall be correspondingly adjusted to give the Holder of the
Warrant, on exercise for the same aggregate Exercise Price, the total number,
class, and kind of shares as the Holder would have owned had the Warrant been
exercised prior to the event and had the Holder continued to hold such shares
until after the event requiring adjustment; provided, however, that such
adjustment shall not be made with respect to, and this Warrant shall terminate
if not exercised prior to, the events set forth in Section 7 below. The form
of this Warrant need not be changed because of any adjustment in the number of
Exercise Shares subject to this Warrant.
6. FRACTIONAL SHARES. No fractional shares shall be issued upon the
exercise of this Warrant as a consequence of any adjustment pursuant hereto.
All Exercise Shares (including fractions) issuable upon exercise of this
Warrant may be aggregated for purposes of determining whether the exercise
would result in the issuance of any fractional share. If, after aggregation,
the exercise would result in the issuance of a fractional share, the Company
shall, in lieu of issuance of any fractional share, pay the Holder otherwise
entitled to such fraction a sum in cash equal to the product resulting from
multiplying the then current fair market value of an Exercise Share by such
fraction.
7. EARLY TERMINATION. In the event of, at any time during the
Exercise Period, any capital reorganization, or any reclassification of the
capital stock of the Company (other than a change in par value or from par
value to no par value or no par value to par value or as a result of a stock
dividend or subdivision, split-up or combination of shares), or the
consolidation or merger of the Company with or into another corporation (other
than a merger solely to effect a reincorporation of the Company into another
state), or the sale or other disposition of all or substantially all the
properties and assets of the Company in its entirety to any other person, this
Warrant shall terminate unless exercised immediately upon the occurrence of
such reorganization, reclassification, consolidation, merger or sale or other
disposition of the Company's assets.
8. NO SHAREHOLDER RIGHTS. This Warrant in and of itself shall not
entitle the Holder to any voting rights or other rights as a stockholder of
the Company.
9. TRANSFER OF WARRANT. This Warrant and all rights hereunder are
transferable, by the Holder in person or by duly authorized attorney, upon
delivery of this Warrant and the form of assignment attached hereto to any
transferee designated by Xxxxxx only with the prior written consent of the
Company. If requested, the transferee shall sign an investment letter in form
and substance satisfactory to the Company.
10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is
lost, stolen, mutilated or destroyed, the Company may, on such terms as to
indemnity or otherwise as it may reasonably impose (which shall, in the case
of a mutilated Warrant, include the surrender thereof), issue a new Warrant of
like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen,
mutilated or destroyed Warrant shall be at any time enforceable by anyone.
11. NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be sent by facsimile telex,
telegram, express mail or other form of rapid communications, if possible, and
if not then such notice or communication shall be mailed by first-class mail,
postage prepaid, addressed in each case to the party entitled thereto at the
following addresses: (a) if to the Company, to Genelabs Technologies, Inc.,
Attention: [NAME OF CONTACT PERSON], 000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx, XX
00000 and (b) if to the Holder, [ADDRESS], or at such other address as one
party may furnish to the other in writing. Notice shall be deemed effective on
the date dispatched if by personal delivery, facsimile, telex or telegram, two
days after mailing if by express mail, or three days after mailing if by
first-class mail.
12. ACCEPTANCE. Receipt of this Warrant by the Holder shall
constitute acceptance of and agreement to all of the terms and conditions
contained herein.
13. GOVERNING LAW. This Warrant and all rights, obligations and
liabilities hereunder shall be governed by the laws of the State of
California.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its duly authorized officer as of __________, 200__.
[COMPANY]
By:
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Title:
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NOTICE OF EXERCISE
TO: GENELABS TECHNOLOGIES, INC.
(1) |_| The undersigned hereby elects to purchase ________ shares of
Common Stock of Genelabs Technologies, Inc. (the "Company") pursuant to the
terms of the attached Warrant, and tenders herewith payment of the exercise
price in full, together with all applicable transfer taxes, if any.
|_| The undersigned hereby elects to purchase ________ shares of
Common Stock of Genelabs Technologies, Inc. (the "Company") pursuant to the
terms of the net exercise provisions set forth in Section 2.1 of the attached
Warrant, and shall tender payment of all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
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(Name)
========================
(Address)
(3) [If a registration statement covering the exercise of the shares
of Common Stock is not then effective and the exercise is being effected other
than pursuant to Section 2.1 of the Warrant, the undersigned represents that
(i) the aforesaid shares of Common Stock are being acquired for the account of
the undersigned for investment and not with a view to, or for resale in
connection with, the distribution thereof and that the undersigned has no
present intention of distributing or reselling such shares; (ii) the
undersigned is aware of the Company's business affairs and financial condition
and has acquired sufficient information about the Company to reach an informed
and knowledgeable decision regarding its investment in the Company; (iii) the
undersigned is experienced in making investments of this type and has such
knowledge and background in financial and business matters that the
undersigned is capable of evaluating the merits and risks of this investment
and protecting the undersigned's own interests; (iv) the undersigned
understands that the shares of Common Stock issuable upon exercise of this
Warrant have not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), by reason of a specific exemption from the
registration provisions of the Securities Act, which exemption depends upon,
among other things, the bona fide nature of the investment intent as expressed
herein, and, because such securities have not been registered under the
Securities Act, they must be held indefinitely unless subsequently registered
under the Securities Act or an exemption from such registration is available;
(v) the undersigned is aware that the aforesaid shares of Common Stock may not
be sold pursuant to Rule 144 adopted under the Securities Act unless certain
conditions are met and until the undersigned has held the shares for the
number of years prescribed by Rule 144, that among the conditions for use of
the Rule is the availability of current information to the public about the
Company and the Company has not made such information available and has no
present plans to do so; and (vi) the undersigned agrees not to make any
disposition of all or any part of the aforesaid shares of Common Stock unless
and until there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with said registration statement, or the undersigned has
provided the Company with an opinion of counsel satisfactory to the Company,
stating that such registration is not required.]
__________________________________ ____________________________________
(Date) (Signature)
____________________________________
(Print name)
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form
and supply required information. Do not use this form
to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
Name:___________________________________________________________________________
(Please Print)
Address:________________________________________________________________________
(Please Print)
Dated:______________________________________________________, 20___
Holder's Signature:_____________________________________________________________
Holder's Address:_______________________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever. Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of authority to assign
the foregoing Warrant.
