THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN SECTION 5 OF THIS WARRANT
Exhibit
10.1
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE
ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFER
SET FORTH IN SECTION 5
OF THIS WARRANT
|
Warrant
No. [ ]
|
Number
of Shares: [ ]
(subject
to adjustment)
|
|
Date
of Issuance:
[ ],
200[ ]
Original
Issue Date (as defined in subsection 2(a)):
[ ],
200[ ]
|
|
(Void
after [ ],
201[ ])
Nile
Therapeutics, Inc., a Delaware corporation (the “Company”),
for
value received, hereby certifies that [ ],
or its
registered assigns (the “Registered
Holder”),
is
entitled, subject to the terms and conditions set forth below, to purchase
from
the Company, at any time or from time to time on or after [ ],
200[ ]
and on
or before 5:00 p.m. (Eastern time) on [
],
201[
]
(the
“Exercise
Period”),
[ ]
shares
of Common Stock, $0.001 par value per share, of the Company (“Common
Stock”),
at a
purchase price of $[ ]
per
share. The shares purchasable upon exercise of this Warrant, and the purchase
price per share, each as adjusted from time to time pursuant to the provisions
of this Warrant, are hereinafter referred to as the “Warrant
Shares”
and
the
“Purchase
Price,”
respectively. This Warrant is one of a series of Warrants issued by the Company,
all with the same Original Issue Date and of like tenor, except as to the number
of Warrant Shares subject thereto (the “Company
Warrants”).
1. Exercise.
(a) Exercise.
The
Registered Holder may, at its option, elect to exercise this Warrant, in whole
or in part and at any time or from time to time during the Exercise Period,
by
surrendering this Warrant, with the purchase form appended hereto as
Exhibit I
duly
executed by or on behalf of the Registered Holder, at the principal office
of
the Company, or at such other office or agency as the Company may designate,
accompanied by payment in full, in lawful money of the United States, of the
Purchase Price payable in respect of the number of Warrant Shares purchased
upon
such exercise. A facsimile signature of the Registered Holder on the purchase
form shall be sufficient for purposes of exercising this Warrant, provided
that
the Company receives the Registered Holder’s original signature with three (3)
business days thereafter.
(b) Exercise
Date.
Each
exercise of this Warrant shall be deemed to have been effected immediately
prior
to the close of business on the day on which this Warrant shall have been
surrendered to the Company as provided in subsection 1(a)
(the
“Exercise
Date”).
At
such time, the person or persons in whose name or names any certificates for
Warrant Shares shall be issuable upon such exercise as provided in subsection
1(c)
below
shall be deemed to have become the holder or holders of record of the Warrant
Shares represented by such certificates.
(c) Issuance
of Certificates.
As soon
as practicable after the exercise of this Warrant in whole or in part, and
in
any event within 10 days thereafter, the Company, at its expense, will cause
to
be issued in the name of, and delivered to, the Registered Holder, or as the
Registered Holder (upon payment by the Registered Holder of any applicable
transfer taxes) may direct:
(i) a
certificate or certificates for the number of full Warrant Shares to which
the
Registered Holder shall be entitled upon such exercise plus, in lieu of any
fractional share to which the Registered Holder would otherwise be entitled,
cash in an amount determined pursuant to Section 3
hereof;
and
(ii) in
case
such exercise is in part only, a new warrant or warrants (dated the date hereof)
of like tenor, calling in the aggregate on the face or faces thereof for the
number of Warrant Shares equal (without giving effect to any adjustment therein)
to the number of such shares called for on the face of this Warrant minus the
number of Warrant Shares for which this Warrant was so exercised.
2. Adjustments.
(a) Adjustment
for Stock Splits and Combinations.
If the
Company shall at any time or from time to time after the date on which this
Warrant was first issued (or, if this Warrant was issued upon partial exercise
of, or in replacement of, another warrant of like tenor, then the date on which
such original warrant was first issued) (the “Original
Issue Date”)
effect
a subdivision of the outstanding Common Stock, the Purchase Price then in effect
immediately before that subdivision shall be proportionately decreased and
the
number of shares of Common Stock issuable upon exercise of this Warrant shall
be
increased in proportion to the increase in shares of Common Stock outstanding.
If the Company shall at any time or from time to time after the Original Issue
Date combine the outstanding shares of Common Stock, the Purchase Price then
in
effect immediately before the combination shall be proportionately increased
and
the number of shares of Common Stock issuable upon exercise of this Warrant
shall be decreased in proportion to the decrease in shares of Common Stock
outstanding. Any adjustment under this paragraph shall become effective at
the
close of business on the date the subdivision or combination becomes
effective.
(b) Adjustment
for Certain Dividends and Distributions.
In the
event the Company at any time, or from time to time after the Original Issue
Date shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution payable
in
additional shares of Common Stock, then and in each such event the Purchase
Price then in effect immediately before such event shall be decreased as of
the
time of such issuance or, in the event such a record date shall have been fixed,
as of the close of business on such record date, by multiplying the Purchase
Price then in effect by a fraction:
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-
(1) the
numerator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close
of
business on such record date, and
(2) the
denominator of which shall be the total number of shares of Common Stock issued
and outstanding immediately prior to the time of such issuance or the close
of
business on such record date plus the number of shares of Common Stock issuable
in payment of such dividend or distribution; provided,
however,
that if
such record date shall have been fixed and such dividend is not fully paid
or if
such distribution is not fully made on the date fixed therefor, the Purchase
Price shall be recomputed accordingly as of the close of business on such record
date and thereafter the Purchase Price shall be adjusted pursuant to this
paragraph as of the time of actual payment of such dividends or
distributions.
(c) Adjustments
for Other Dividends and Distributions.
In the
event the Company at any time or from time to time after the Original Issue
Date
shall make or issue, or fix a record date for the determination of holders
of
Common Stock entitled to receive, a dividend or other distribution payable
in
securities of the Company (other than shares of Common Stock) or in cash or
other property (other than regular cash dividends paid out of earnings or earned
surplus, determined in accordance with generally accepted accounting
principles), then and in each such event provision shall be made so that the
Registered Holder shall receive upon exercise hereof, in addition to the number
of shares of Common Stock issuable hereunder, the kind and amount of securities
of the Company, cash or other property which the Registered Holder would have
been entitled to receive had this Warrant been exercised on the date of such
event and had the Registered Holder thereafter, during the period from the
date
of such event to and including the Exercise Date, retained any such securities
receivable during such period, giving application to all adjustments called
for
during such period under this Section 2
with
respect to the rights of the Registered Holder.
(d) Adjustment
for Reorganization.
If
there shall occur any reorganization, recapitalization, reclassification,
consolidation or merger involving the Company in which the Common Stock is
converted into or exchanged for securities, cash or other property (other than
a
transaction covered by subsections 2(a),
2(b)
or
2(c))
(collectively, a “Reorganization”),
then,
following such Reorganization, the Registered Holder shall receive upon exercise
hereof the kind and amount of securities, cash or other property which the
Registered Holder would have been entitled to receive pursuant to such
Reorganization if such exercise had taken place immediately prior to such
Reorganization. Notwithstanding the foregoing sentence, if (x) there shall
occur any Reorganization in which the Common Stock is converted into or
exchanged for anything other than solely equity securities, and (y) the
common stock of the acquiring or surviving company is publicly traded, then,
as
part of such Reorganization, (i) the Registered Holder shall have the right
thereafter to receive upon the exercise hereof such number of shares of common
stock of the acquiring or surviving company as is determined by multiplying
(A) the number of shares of Common Stock subject to this Warrant
immediately prior to such Reorganization by (B) a fraction, the numerator
of which is the Fair Market Value (as defined below) per share of Common Stock
as of the effective date of such Reorganization, and the denominator of which
is
the fair market value per share of common stock of the acquiring or surviving
company as of the effective date of such transaction, as determined in good
faith by the Board (using the principles set forth in subsections 2(d)(i)
and 2(d)(ii) to the extent applicable), and (ii) the exercise price per
share of common stock of the acquiring or surviving company shall be the
Purchase Price divided by the fraction referred to in clause (B) above. In
any such case, appropriate adjustment (as determined in good faith by the Board)
shall be made in the application of the provisions set forth herein with respect
to the rights and interests thereafter of the Registered Holder, to the end
that
the provisions set forth in this Section 2
(including provisions with respect to changes in and other adjustments of the
Purchase Price) shall thereafter be applicable, as nearly as reasonably may
be,
in relation to any securities, cash or other property thereafter deliverable
upon the exercise of this Warrant. The Fair Market Value per share of Common
Stock shall be determined as follows:
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-
(1) If
the
Common Stock is listed on a national securities exchange, the Nasdaq National
Market, the Nasdaq Capital Market (formerly, the Nasdaq SmallCap Market) or
another nationally recognized trading system as of the Exercise Date, the Fair
Market Value per share of Common Stock shall be deemed to be the average of
the
high and low reported sale prices per share of Common Stock thereon on the
trading day immediately preceding the Exercise Date (provided
that if
no such price is reported on such day, the Fair Market Value per share of Common
Stock shall be determined pursuant to clause (2) below).
(2) If
the
Common Stock is not listed on a national securities exchange, the Nasdaq
National Market, the Nasdaq Capital Market (formerly, the Nasdaq SmallCap
Market) or another nationally recognized trading system as of the Exercise
Date,
the Fair Market Value per share of Common Stock shall be deemed to be the amount
most recently determined by the Board of Directors of the Company (the
“Board”)
to
represent the fair market value per share of the Common Stock (including without
limitation a determination for purposes of granting Common Stock options or
issuing Common Stock under any plan, agreement or arrangement with employees
of
the Company); and, upon request of the Registered Holder, the Board (or a
representative thereof) shall, as promptly as reasonably practicable but in
any
event not later than 10 days after such request, notify the Registered Holder
of
the Fair Market Value per share of Common Stock and furnish the Registered
Holder with reasonable documentation of the Board’s determination of such Fair
Market Value. Notwithstanding the foregoing, if the Board has not made such
a
determination within the three-month period prior to the Exercise Date, then
(A) the Board shall make, and shall provide or cause to be provided to the
Registered Holder notice of, a determination of the Fair Market Value per share
of the Common Stock within 15 days of a request by the Registered Holder that
it
do so, and (B) the exercise of this Warrant pursuant to this clause (2)
shall be delayed until such determination is made and notice thereof is provided
to the Registered Holder.
(e) Certificate
as to Adjustments.
Upon
the occurrence of each adjustment or readjustment of the Purchase Price pursuant
to this Section 2,
the
Company at its expense shall, as promptly as reasonably practicable but in
any
event not later than 10 days thereafter, compute such adjustment or readjustment
in accordance with the terms hereof and furnish to the Registered Holder a
certificate setting forth such adjustment or readjustment (including the kind
and amount of securities, cash or other property for which this Warrant shall
be
exercisable and the Purchase Price) and showing in detail the facts upon which
such adjustment or readjustment is based. The Company shall, as promptly as
reasonably practicable after the written request at any time of the Registered
Holder (but in any event not later than 10 days thereafter), furnish or cause
to
be furnished to the Registered Holder a certificate setting forth (i) the
Purchase Price then in effect and (ii) the number of shares of Common Stock
and the amount, if any, of other securities, cash or property which then would
be received upon the exercise of this Warrant.
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3. Fractional
Shares.
The
Company shall not be required upon the exercise of this Warrant to issue any
fractional shares, but shall pay the value thereof to the Registered Holder
in
cash on the basis of the Fair Market Value per share of Common Stock, as
determined pursuant to subsection 2(d)
above.
4. Investment
Representations.
The
initial Registered Holder represents and warrants to the Company as
follows:
(a) Investment.
It is
acquiring the Warrant, and (if and when it exercises this Warrant) it will
acquire the Warrant Shares, for its own account for investment and not with
a
view to, or for sale in connection with, any distribution thereof, nor with
any
present intention of distributing or selling the same; and the Registered Holder
has no present or contemplated agreement, undertaking, arrangement, obligation,
indebtedness or commitment providing for the disposition thereof.
(b) Accredited
Investor.
The
Registered Holder is an "accredited investor" as defined in Rule 501(a) under
the Securities Act of 1933, as amended (the “Act”).
(c) Experience.
The
Registered Holder has made such inquiry concerning the Company and its business
and personnel as it has deemed appropriate; and the Registered Holder has
sufficient knowledge and experience in finance and business that it is capable
of evaluating the risks and merits of its investment in the
Company.
5. Transfers,
etc.
(a) Notwithstanding
anything to the contrary contained herein, this Warrant and the Warrant Shares
shall not be sold or transferred unless either (i) they first shall have
been registered under the Act, or (ii) such sale or transfer shall be
exempt from the registration requirements of the Act and the Company shall
have
been furnished with an opinion of legal counsel, reasonably satisfactory to
the
Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Act. Notwithstanding the foregoing, no
registration or opinion of counsel shall be required for (i) a transfer by
a Registered Holder which is an entity to a wholly owned subsidiary of such
entity, a transfer by a Registered Holder which is a partnership to a partner
of
such partnership or a retired partner of such partnership or to the estate
of
any such partner or retired partner, or a transfer by a Registered Holder which
is a limited liability company to a member of such limited liability company
or
a retired member or to the estate of any such member or retired member,
provided
that the
transferee in each case agrees in writing to be subject to the terms of this
Section 5,
or
(ii) a transfer made in accordance with Rule 144 under the
Act.
(b) Each
certificate representing Warrant Shares shall bear a legend substantially in
the
following form:
“The
securities represented hereby have not been registered under the Securities
Act
of 1933, as amended, or any state securities laws and neither the securities
nor
any interest therein may not be offered, sold, transferred, pledged or otherwise
disposed of except pursuant to an effective registration under such act or
an
exemption from registration, which, in the opinion of counsel reasonably
satisfactory to counsel for this corporation, is available.”
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(c) The
Company will maintain a register containing the name and address of the
Registered Holder of this Warrant. The Registered Holder may change its address
as shown on the warrant register by written notice to the Company requesting
such change.
(d) Subject
to the provisions of this Section 5
hereof,
this Warrant and all rights hereunder are transferable, in whole or in part,
upon surrender of this Warrant with a properly executed assignment (in the
form
of Exhibit II
hereto)
at the principal office of the Company (or, if another office or agency has
been
designated by the Company for such purpose, then at such other office or
agency).
6. No
Impairment.
The
Company will not, by amendment of its charter 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 of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of
all
such action as may be necessary or appropriate in order to protect the rights
of
the Registered Holder against impairment.
7. Notices
of Record Date, etc.
In the
event:
(a) the
Company shall take a record of the holders of its Common Stock (or other stock
or securities at the time deliverable upon the exercise of this Warrant) for
the
purpose of entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or purchase any shares
of
stock of any class or any other securities, or to receive any other right;
or
(b) of
any
capital reorganization of the Company, any reclassification of the Common Stock
of the Company, any consolidation or merger of the Company with or into another
corporation (other than a merger in which the outstanding capital stock of
the
Company is not exchanged for securities or property of another company), or
any
transfer of all or substantially all of the assets of the Company;
or
(c) of
the
voluntary or involuntary dissolution, liquidation or winding-up of the Company,
then,
and
in each such case, the Company will send or cause to be sent to the Registered
Holder a notice specifying, as the case may be, (i) the record date for such
dividend, distribution or right, and the amount and character of such dividend,
distribution or right, or (ii) the effective date on which such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation
or
winding-up is to take place, and the time, if any is to be fixed, as of which
the holders of record of Common Stock (or such other stock or securities at
the
time deliverable upon the exercise of this Warrant) shall be entitled to
exchange their shares of Common Stock (or such other stock or securities) for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, transfer, dissolution, liquidation
or
winding-up. Such notice shall be sent at least 10 days prior to the record
date
or effective date for the event specified in such notice.
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8. Reservation
of Stock.
The
Company will at all times reserve and keep available, solely for issuance and
delivery upon the exercise of this Warrant, such number of Warrant Shares and
other securities, cash and/or property, as from time to time shall be issuable
upon the exercise of this Warrant.
9. Agreement
in Connection with Public Offering.
The
Registered Holder agrees, in connection with the initial underwritten public
offering of the Company’s securities pursuant to a registration statement under
the Act, (i) not to sell, make short sale of, loan, grant any options for the
purchase of, or otherwise dispose of any shares of Common Stock or any other
securities of the Company held by the Registered Holder (other than any shares
included in the offering) without the prior written consent of the Company
or
the underwriters managing such initial underwritten public offering of the
Company’s securities for a period of 180 days from the effective date of such
registration statement, and (ii) to execute any agreement reflecting clause
(i)
above as may be requested by the Company or the managing underwriters at the
time of such offering.
10. Exchange
or Replacement of Warrants.
(a) Upon
the
surrender by the Registered Holder, properly endorsed, to the Company at the
principal office of the Company, the Company will, subject to the provisions
of
Section 5
hereof,
issue and deliver to or upon the order of the Registered Holder, at the
Company’s expense, a new Warrant or Warrants of like tenor, in the name of the
Registered Holder or as the Registered Holder (upon payment by the Registered
Holder of any applicable transfer taxes) may direct, calling in the aggregate
on
the face or faces thereof for the number of shares of Common Stock (or other
securities, cash and/or property) then issuable upon exercise of this
Warrant.
(b) Upon
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and (in the case of loss, theft or
destruction) upon delivery of an indemnity agreement (with surety if reasonably
required) in an amount reasonably satisfactory to the Company, or (in the case
of mutilation) upon surrender and cancellation of this Warrant, the Company
will
issue, in lieu thereof, a new Warrant of like tenor.
11. Notices.
All
notices and other communications from the Company to the Registered Holder
in
connection herewith shall be mailed by certified or registered mail, postage
prepaid, or sent via a reputable nationwide overnight courier service
guaranteeing next business day delivery, to the address last furnished to the
Company in writing by the Registered Holder. All notices and other
communications from the Registered Holder to the Company in connection herewith
shall be mailed by certified or registered mail, postage prepaid, or sent via
a
reputable nationwide overnight courier service guaranteeing next business day
delivery, to the Company at its principal office set forth below. If the Company
should at any time change the location of its principal office to a place other
than as set forth below, it shall give prompt written notice to the Registered
Holder and thereafter all references in this Warrant to the location of its
principal office at the particular time shall be as so specified in such notice.
All such notices and communications shall be deemed delivered (i) two
business days after being sent by certified or registered mail, return receipt
requested, postage prepaid, or (ii) one business day after being sent via a
reputable nationwide overnight courier service guaranteeing next business day
delivery.
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12. No
Rights as Stockholder.
Until
the exercise of this Warrant, the Registered Holder shall not have or exercise
any rights by virtue hereof as a stockholder of the Company. Notwithstanding
the
foregoing, in the event (i) the Company effects a split of the Common Stock
by means of a stock dividend and the Purchase Price of and the number of Warrant
Shares are adjusted as of the date of the distribution of the dividend (rather
than as of the record date for such dividend), and (ii) the Registered
Holder exercises this Warrant between the record date and the distribution
date
for such stock dividend, the Registered Holder shall be entitled to receive,
on
the distribution date, the stock dividend with respect to the shares of Common
Stock acquired upon such exercise, notwithstanding the fact that such shares
were not outstanding as of the close of business on the record date for such
stock dividend.
13. Amendment
or Waiver.
Any
term of this Warrant may be amended or waived (either generally or in a
particular instance and either retroactively or prospectively) with the written
consent of the Company and the holders of Company Warrants representing at
least
two-thirds (2/3) of the number of shares of Common Stock then subject to
outstanding Company Warrants. Notwithstanding the foregoing, (a) this Warrant
may be amended and the observance of any term hereunder may be waived without
the written consent of the Registered Holder only in a manner which applies
to
all Company Warrants in the same fashion and (b) the number of Warrant Shares
subject to this Warrant and the Purchase Price of this Warrant, as well as
the
provisions of this Section 13, may not be amended, and the right to exercise
this Warrant may not be waived, without the written consent of the Registered
Holder. The Company shall give prompt written notice to the Registered Holder
of
any amendment hereof or waiver hereunder that was effected without the
Registered Holder’s written consent. No waivers of any term, condition or
provision of this Warrant, in any one or more instances, shall be deemed to
be,
or construed as, a further or continuing waiver of any such term, condition
or
provision.
14. Section
Headings.
The
section headings in this Warrant are for the convenience of the parties and
in
no way alter, modify, amend, limit or restrict the contractual obligations
of
the parties.
15. Governing
Law.
This
Warrant will be governed by and construed in accordance with the internal laws
of the State of Delaware (without reference to the conflicts of law provisions
thereof).
16. Facsimile
Signatures.
This
Warrant may be executed by facsimile signature.
*
* * * *
* *
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EXECUTED
as of the Date of Issuance indicated above.
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxx | |
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
Chief Executive Officer
|
||
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Exhibit
10.1
EXHIBIT
I
FORM
OF
SUBSCRIPTION
(To
be
signed only upon exercise of Warrant)
To: Nile
Therapeutics,
Inc.
The
undersigned, the holder of the attached Common Stock Warrant, hereby elects
to
exercise the purchase right represented by such Warrant for, and to purchase
thereunder, 1
shares
of Common Stock of Nile
Therapeutics,
Inc. and
such
holder herewith
makes payment of $_________ therefor.
The
undersigned requests that certificates for such shares be issued in the name
of,
and delivered to:
________________________________________________________
whose
address is:
___________________________________________________________________________.
DATED:
_________________________________
|
_____________________________________________________________________
(Signature
must conform in all respects to name of Holder as specified on
the face of
the Warrant)
|
||
| |
|
|
| Name: | ||
|
|
||
| Title: | ||
|
|
||
1 Insert
here the number of shares called for on the face of the Warrant (or, in the
case
of a partial exercise, the portion thereof as to which the Warrant is being
exercised), in either case without making any adjustment for any stock or
other
securities or property or cash which, pursuant to the adjustment provisions
of
the Warrant, may be deliverable upon exercise.
EXHIBIT
II
ASSIGNMENT
FORM
(To
assign the foregoing warrant, execute
this
form
and supply required information.
Do
not
use this form to exercise the warrant.)
FOR
VALUE
RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby
assigned to
_______________________________________________
whose address is _______________________________________________________________.
_______________________________________________________________
Dated:
______________, 20___
Holder’s
Signature: _____________________________
Holder’s
Address: _____________________________
_____________________________
Signature
Guaranteed: ___________________________________________
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
whatsoever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing
Warrant.
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