EXHIBIT 4.1 FORM OF STOCK PURCHASE WARRANT
THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF EXCEPT IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF SUCH ACT AND
APPLICABLE LAWS OR SOME OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT AND APPLICABLE LAWS IS AVAILABLE WITH RESPECT THERETO. THIS WARRANT WAS
ISSUED PURSUANT TO THAT CERTAIN STOCK AND WARRANT PURCHASE AGREEMENT DATED
DECEMBER 31, 1997 AND MAY NOT BE TRANSFERRED, COMBINED, OR SPLIT UP WITHOUT THE
PRIOR WRITTEN CONSENT OF THE COMPANY. THE COMPANY WILL DELIVER A COPY OF SUCH
AGREEMENT TO THE HOLDER HEREOF UPON REQUEST.
No. ____ _________ Shares
of Common Stock
REPLIGEN CORPORATION
STOCK PURCHASE WARRANT
Expiration Date: December 31, 2004
Repligen Corporation, a Delaware corporation (the "Company"), hereby
certifies that _______________ (the "Warrantholder"), for value received, is
entitled, subject to the terms set forth below, to purchase from the Company at
any time or from time to time before the Expiration Date, as defined in Section
1, that number of fully paid and nonassessable shares of the Common Stock of the
Company (the "Common Stock") set forth above at an exercise price of $1.50 per
share (subject to adjustment pursuant to Section 6). This Warrant is issued
pursuant to the terms and conditions of that certain Stock and Warrant Purchase
Agreement dated as of December 31, 1997 among the Company and the Investors (as
defined therein).
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
The term "Company" includes any corporation which shall succeed to or
assume the obligations of the Company hereunder.
The term "Stock" shall mean the class of Common Stock of the Company and
any other securities or property of the Company or of any other person
(corporate or otherwise) which the Warrantholder at any time shall be entitled
to receive on the exercise hereof in lieu of or in addition to such Common
Stock, or which at any time shall be issuable in exchange for or in replacement
of such Common Stock.
1. Initial Exercise Date; Expiration. Subject to the provisions of Section
2, this Warrant may be exercised at any time or from time to time. It shall
expire at 5:00 p.m., Eastern time, on December 31, 2004 (the "Expiration Date").
15
2. Exercise of Warrant; Redemption. (a) This Warrant may be exercised in
full or in part by the holder hereof by surrender of this Warrant, with the form
of "cash exercise" subscription attached hereto (the "Exercise Notice") duly
executed by such holder, to the Company at its principal office, accompanied by
payment, in cash or by certified or official bank check payable to the order of
the Company, of the purchase price of the shares of Stock to be purchased
hereunder.
(b) The Warrantholder may elect to receive, without the payment by the
Warrantholder of any additional consideration, shares equal to the value of this
Warrant or any portion hereof by the surrender of this Warrant or such portion
to the Company, with the redemption notice attached hereto (the "Redemption
Notice") duly executed, at the office of the Company. Thereupon, the Company
shall issue to the Warrantholder such number of fully paid and nonassessable
shares of Stock as is computed using the following formula:
X = Y (A-B) / A
where X = the number of shares to be issued to the Warrantholder pursuant
to this Section 2(b).
Y = the number of shares covered by this Warrant in respect of which
the net issue election is made pursuant to this Section 2(b).
A = the fair market value ("FMV") of one share of Common Stock, as
determined below, as at the time the net issue election is made
pursuant to this Section 2(b).
B = the Purchase Price in effect under this Warrant at the time the net
issue election is made pursuant to this Section 2(b).
For the purposes of this Section 2(b), FMV shall be determined at
the time of exercise and shall mean: (A) if the Common Stock is then publicly
traded, the average closing price in the over-the-counter market as reported by
NASDAQ or as quoted in the NASDAQ National Market System or on any national
securities exchange on which the Common Stock is traded for the ten (10) prior
trading days, or (B) if the Common Stock is not then publicly traded, the price
per share of Common Stock or Common Stock equivalent paid by investors to
purchase the Common Stock or Common Stock equivalent of the Company (taking into
account any consideration paid separately to acquire any security which is
exercisable for or convertible into Common Stock) in any arm's length equity
financing completed within the preceding six (6) months, or, if no such equity
financing has so occurred, a fair value as determined in good faith by the Board
of Directors of the Company (the "Board") or (C) in the case of a Business
Combination, the price per share of Common Stock paid in the Business
Combination or, if such payment is made by property other than cash, the fair
value of such property paid per share of Common Stock in the Business
Combination as determined in good faith by the Board. In the event that this
Warrant is exercised pursuant to this Section 2(b) in connection with a Business
Combination, the Company may elect to treat such exercise in accordance with
Section 5(d). In the event the Common Stock is not publicly traded, the Board of
Directors of the Company shall promptly respond in writing to a reasonable
inquiry by the holder hereof as to the fair market value of the Common Stock for
purposes of this Section 2(b).
(c) For any partial exercise or redemption pursuant to Section 2(a)
or 2(b) hereof, the Warrantholder shall designate in the Exercise Notice or
Redemption Notice (as the case may be) the number of shares of Stock that it
wishes to purchase or the aggregate number of underlying shares of Stock
16
represented by the portion of the Warrant it wishes to redeem (as the case may
be). On any such partial exercise or redemption, the Company at its expense
shall forthwith issue and deliver to the Warrantholder a new warrant of like
tenor, in the name of the Warrantholder, which shall be exercisable for such
number of shares of Stock represented by this Warrant which have not been
purchased upon such exercise or redemption.
3. When Exercise or Redemption Effective. The exercise or redemption of
this Warrant shall be deemed to have been effected immediately prior to the
close of business on the business day on which this Warrant is surrendered to
the Company as provided in Section 2(a) or 2(b) (as the case may be).
4. Delivery on Exercise or Redemption. As soon as practicable after the
exercise or redemption of this Warrant in full or in part pursuant to Section
2(a) or 2(b), as the case may be, and in any event within five (5) business days
thereafter, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered to
the Warrantholder, or as such Warrantholder may direct, a certificate or
certificates for the number of fully paid and nonassessable full shares of Stock
to which such holder shall be entitled on such exercise or redemption, together
with cash, in lieu of any fraction of a share, equal to such fraction of the
then FMV of one full share as determined in accordance with Section 2(b).
5. Business Combinations.
(a) In event of any merger, consolidation or sale of the outstanding
capital stock of the Company (in a single transaction or related series of
transactions), resulting in a change of ownership of two-thirds or more of the
voting power of the Company, or in the event of a sale of all or substantially
all of the assets of the Company (such merger, consolidation or sale referred to
hereinafter as a "Business Combination"), the Company shall have the right at
any time or times to redeem this Warrant in full or in part in accordance with
Section 2(b) and this Section 5.
(b) At least 10 days before the date fixed by the Company for
redemption pursuant to this Section 5, the Company shall mail, postage prepaid,
written notice to the Warrantholder (the "Company Redemption Notice"), at his
address shown on the records of the Company; provided, however, that the
Company's failure to give the Company Redemption Notice shall in no way affect
its right to redeem this Warrant as provided herein. The Company Redemption
Notice shall contain the following information:
(i) The redemption date(s);
(ii) The applicable FMV of the Common Stock determined in accordance
with Section 2(b) and the number of shares of Stock issuable to the
Warrantholder upon redemption; and
(iii) A statement that the Warrantholder is to surrender this
Warrant to the Company, at the place designated.
(c) The Warrantholder shall surrender this Warrant to the Company at
the place designated in the Company Redemption Notice. Thereupon, there shall be
issued to the Warrantholder a certificate or certificates for the number of
shares of Stock issuable pursuant to Section 2(b) (or such other consideration
as may be payable pursuant to Section 5(d)). The Company shall not be obligated
to issue certificates evidencing such shares of Stock or other consideration
unless this Warrant is either delivered to the Company or any transfer agent
designated by the Company or unless the Warrantholder notifies the Company or
such transfer agent that this Warrant has been lost, stolen or destroyed and
executes an
17
agreement satisfactory to the Company to indemnify the Company from any loss
incurred by it in connection therewith.
(d) In lieu of issuing shares of Stock upon redemption of this
Warrant, the Company may, at its election, pay or issue, or cause to be paid or
issued, to the Warrantholder the amount of cash or number of shares of Stock or
other securities or property of the Company, or of the successor corporation,
resulting from the Business Combination to which such holder would have been
entitled upon such date if such holder had redeemed this Warrant pursuant to
Section 2(b) immediately prior thereto.
(e) In case at any time and from time to time, the Company shall
effect a Business Combination and the Company does not exercise its right to
redeem this Warrant in accordance with the foregoing provisions of this Section
5, then in such case, the holder of this Warrant, on the exercise hereof
pursuant to Section 1 at any time after the date of the consummation of such
Business Combination, shall receive, in lieu of the Common Stock or other
securities that would have been issuable upon such exercise prior to the
consummation of the Business Combination, the amount of cash or number of shares
of Stock or other securities or property of the Company, or of the successor
corporation, to which such holder would have been entitled upon the consummation
of such Business Combination if such holder had so exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in
Section 6 below.
6. Adjustment of Purchase Price and Number of Shares. The character of the
shares of Stock issuable upon exercise or redemption of this Warrant (or any
shares of stock or other securities at the time issuable upon exercise or
redemption of this Warrant) and the purchase price therefor, are subject to
adjustment upon the occurrence of the following events:
(a) Adjustment for Stock Splits, Stock Dividends, Recapitalizations,
etc. The exercise price of this Warrant and the number of shares of Stock
issuable upon exercise or redemption of this Warrant (or any shares of stock or
other securities at the time issuable upon exercise or redemption of this
Warrant) shall be appropriately adjusted to reflect any stock dividend, stock
split, combination of shares, reclassification, recapitalization or other
similar event affecting the number of outstanding shares of Stock (or such other
stock or securities). For example, if there should be a 2-for-1 stock split, the
exercise price would be divided by two and such number of shares would be
doubled.
(b) Adjustment for Other Dividends and Distributions. In case the
Company shall make or issue, or shall fix a record date for the determination of
eligible holders entitled to receive, a dividend or other distribution after
December 31, 1997 with respect to the Stock (or any shares of stock or other
securities at the time issuable upon exercise or redemption of the Warrant)
payable in (i) securities of the Company (other than shares of Stock) or (ii)
assets (excluding cash dividends paid or payable solely out of current or
retained earnings), then, in each case, the holder of this Warrant on exercise
or redemption hereof at any time after the consummation, effective date or
record date of such event, shall receive, in addition to the Stock (or such
other stock or securities) issuable on such exercise or redemption prior to such
date, the securities or such other assets of the Company to which such holder
would have been entitled upon such date if such holder had exercised or redeemed
this Warrant immediately prior thereto (all subject to further adjustment as
provided in this Warrant).
(c) Certificate as to Adjustments. In case of any adjustment or
readjustment in the price or kind of securities issuable on the exercise or
redemption of this Warrant, the Company will promptly give written notice
thereof to the holder of this Warrant in the form of a certificate, certified
and confirmed by the
18
President of the Company, setting forth such adjustment or readjustment and
showing in reasonable detail the facts upon which such adjustment or
readjustment is based.
7. No Impairment. The Company will not, by amendment of its Certificate 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 of this
Warrant, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant against
impairment. Without limiting the generality of the foregoing the Company (a)
will not increase the par value of any shares of stock receivable on the
exercise or redemption of this Warrant above the amount payable therefor on such
exercise or redemption, (b) will at all times reserve and keep available a
number of its authorized shares of Stock, free from all preemptive rights
therein, which will be sufficient to permit the exercise or redemption of this
Warrant by the Warrantholder, and (c) shall take all such action as may be
necessary or appropriate in order that all shares of Stock as may be issued
pursuant to the exercise or redemption of this Warrant will, upon issuance, be
duly and validly issued, fully paid and nonassessable and free from all taxes,
liens and charges with respect to the issue thereof.
8. Notices of Record Date, etc. In the event of
(a) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company, or any transfer of all
or substantially all the assets of the Company to or consolidation or merger of
the Company with or into any other person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, or
(d) any proposed issue or grant by the Company of any shares of any
class or any other securities, or any right or option to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any other securities,
then and in each such event the Company will mail to the holder hereof a notice
specifying (i) the date on which any such record is to be taken for the purpose
of such dividend, distribution or right, and stating the amount and character of
such dividend, distribution or right, (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, 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 Stock (or any shares
of stock or other securities at the time issuable upon the exercise or
redemption of this Warrant) shall be entitled to exchange their shares for
securities or other property deliverable on such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up, and (iii) the amount and character of
any stock or other securities, or rights or options with respect thereto,
proposed to be issued or granted, the date of such proposed issue or grant and
the persons or class of persons to whom such proposed issue or grant is to be
offered or made. Such notice shall be mailed at least 10 days prior to the date
therein specified.
9. Exchange of Warrant. On surrender for exchange of this Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to, or on the order of, the holder thereof a new
19
Warrant of like tenor, in the name of such holder calling in the aggregate on
the face thereof for the number of shares of Stock called for on the face of the
Warrant so surrendered.
10. Replacement of Warrant. On receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
11. Investment Intent. Unless a current registration statement under the
Securities Act of 1933, as amended, shall be in effect with respect to the
issuance of the securities to be issued upon exercise or redemption of this
Warrant, the holder thereof, by accepting this Warrant, covenants and agrees
that, at the time of exercise or redemption hereof, and at the time of any
proposed transfer of securities acquired upon exercise or redemption hereof,
such holder will deliver to the Company a written statement that the securities
acquired by the holder upon exercise or redemption hereof are for the own
account of the holder for investment and are not acquire with a view to, or for
sale in connection with, any distribution thereof (or any portion thereof) and
with no present intention (at any such time) of offering and distributing such
securities (or any person thereof).
12. Transfer. This Warrant is not transferable without the prior written
consent of the Company.
13. No Rights or Liability as a Stockholder. This Warrant does not entitle
the Warrantholder to any voting rights or other rights as a stockholder of the
Company. No provisions hereof, in the absence of affirmative action by the
Warrantholder to purchase Stock, and no enumeration herein of the rights or
privileges of the Warrantholder shall give rise to any liability of such
Warrantholder as a stockholder of the Company.
14. Damages. The Company recognizes and agrees that the Warrantholder will
not have an adequate remedy if the Company fails to comply with the terms of
this Warrant and that damages will not be readily ascertainable, and the Company
expressly agrees that, in the event of such failure, it shall not oppose an
application by the holder of this Warrant or any other person entitled to the
benefits of this Warrant requiring specific performance of any and all
provisions hereof or enjoining the Company from continuing to commit any such
breach on the terms hereof.
15. Notices. All notices referred to in this Warrant shall be in writing
and shall be delivered personally or by certified or registered mail, return
receipt requested, postage prepaid and will be deemed to have been given when so
delivered or mailed (i) to the Company, at its principal executive offices and
(ii) to the Warrantholder, at such Warrantholder's address as it appears in the
records of the Company (unless otherwise indicated in accordance with the
provisions of this Section 15 by such holder).
16. Payment of Taxes. All shares of Stock issued upon the exercise of this
Warrant shall be validly issued, fully paid and nonassessable, and the Company
shall pay all taxes and other governmental charges that may be imposed in
respect to the issue or delivery thereof.
17. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
Warrantholder and the Company. This Warrant shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware. The headings
in this Warrant are for purposes of reference only, and shall not limit or
otherwise affect any of the terms hereof.
[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
20
DATED: December 31, 1997
REPLIGEN CORPORATION
By: ________________________________
Title:
[Corporate Seal]
Attest:
_______________________________
Secretary
21
