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EXHIBIT 10.131
Dated as of September 11, 2000
BRIDGE FINANCING AGREEMENT
Axys Pharmaceuticals, Inc.,
a Delaware corporation
000 Xxxxxxx Xxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
The undersigned, Akkadix Corporation, a California corporation (the
"Company"), hereby agrees with Axys Pharmaceuticals, Inc., a Delaware
corporation ("Axys" or "Lender"), with respect to this Bridge Financing
Agreement (this "Agreement") as follows:
1. Authorization. The Company has authorized the issuance and sale to Lender
of a secured convertible note and security agreement in the amount of Two
Million Dollars ($2,000,000) in the form attached hereto as Exhibit A (the
"Note") and a warrant in the form attached hereto as Exhibit B (the "Warrant")
to purchase 200,000 shares of Series E Convertible Preferred Stock ("Series E
Preferred Stock") of the Company. The Note, the Warrant, and the Series E
Preferred Stock purchasable under the Note and Warrant are sometimes
collectively referred to herein as the "Securities."
2. Sale and Purchase of the Note and Warrant. Upon the terms and conditions
contained herein, the Company agrees to sell to Axys, and Axys agrees to
purchase from the Company, at the Closing (as hereinafter defined in Section 3
below): (a) the Note at a purchase price equal to the full principal amount of
such Note; and (b) a Warrant to purchase up to 200,000 shares of Series E
Preferred Stock. The purchase price for the Warrant shall be equal to $.001
times the number of shares of Series E Preferred Stock which would be initially
covered by such Warrant.
3. Closing. The closing of the sale to and purchase by Lender of the Note and
Warrant (the "Closing") shall occur on or before September 30, 2000 at a
location mutually acceptable to the Company and the Lender or as soon
thereafter as all of the conditions to Closing set forth in Section 7 have been
satisfied (the "Closing Date"). At the Closing, the Company shall deliver to
Lender or its representatives the Note and Warrant, each issued in the name of
Axys, in the amounts specified in Section 2 above, against delivery to the
Company of payment, by check or by wire transfer in the aggregate amount of
$2,000,200. The Company hereby acknowledges (a) receipt of $2,000,000 as
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payment in full for the Note on September 11, 2000 (the "Effective Date") and
(b) the receipt of $200 as payment in full for the Warrant. The Company further
acknowledges that interest under the Note began to accrue on the Effective Date.
4. Company Representations and Warranties. The Company represents and
warrants to the Lender on the date hereof and on the Closing Date, except as
identified on the attached Schedule of Exceptions, as follows:
(a) Organization and Standing; Articles and Bylaws. The Company is a
corporation duly organized, validly existing, and in good standing under
the laws of the State of California, and has full power and authority and
all material licenses, permits, and approvals to own and operate its
properties and assets and to carry on its business as presently conducted.
The Company is duly qualified and authorized to do business, and is in
good standing as a foreign corporation, in each jurisdiction where the
nature of its activities and of its properties (both owned and leased)
makes such qualification necessary, except where the failure to so qualify
would not have a material adverse effect upon the business and operations
of the Company.
(b) Authorization. All corporate action on the part of the Company, its
officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, the Note, the Warrant, and
related documents (collectively, the "Transaction Documents"), and the
performance of all the Company's obligations hereunder and thereunder, and
for the authorization, issuance, sale and delivery of the Securities has
been taken or will be taken prior to the Closing, except that the
Company's board of directors has not designated the Series E Preferred
Stock purchasable under the Note and Warrant from the Company's existing
non-designated Preferred Stock (as defined below in Section 4(c)),
although the Company's board of directors has agreed to do so immediately
upon Lender's request, pursuant to the terms of a side letter set forth in
Exhibit G attached hereto. The Transaction Documents, when executed and
delivered, shall constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of
debtors and subject to the availability of equitable remedies.
(c) Capitalization; Validity of Securities.
(i) The authorized capital stock of the Company consists of (A)
30,000,000 shares of Common Stock, par value $.001 per share (the
"Common Stock"), of which, as of the date hereof and as of
immediately prior to the Closing, there are 1,739,522 shares
outstanding, (B) 11,650,000 shares of Preferred Stock authorized, par
value $.001 per share (the
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"Preferred Stock"), of which 6,003,002 shares of Series A Preferred
Stock are outstanding, 3,349,885 shares of Series B Preferred Stock
are outstanding, 100,000 shares of Series C Preferred Stock are
outstanding, and pursuant to a licensing transaction, the Company has
reserved an aggregate of 3,690,000 shares of Series D Preferred for
issuance.
(ii) Of the Company's 30,000,000 authorized shares of Common Stock,
2,750,000 shares of Common Stock (the "Option Pool") have been
reserved for issuance under the Company's 1998 Equity Incentive Plan
(the "Plan"). Of this amount, 1,108,488 shares of Common Stock have
been issued as restricted stock, 211,034 shares of Common Stock have
been issued pursuant to the exercise of option granted under the
Plan, 1,118,628 shares of Common Stock may be issued under
outstanding option grants under the Plan, and 61,850 shares of Common
Stock remaining in the Option Pool for issuance under the Plan.
(iii) The sale of the Securities is not and will not be subject to
any preemptive rights or rights of first refusal that have not been
waived; provided, however, that the Securities may be subject to
restrictions on transfer under state and/or federal securities laws
as set forth herein or therein or as otherwise required by such laws
at the time a transfer is proposed. Consistent with the provisions of
the Note and the Warrant, the Series E Preferred Stock issuable upon
exchange or conversion of the Note and exercise of the Warrant have
not been designated but have been reserved. Once designated, issued
and delivered and upon payment therefor in accordance with the terms
of the Note and Warrant, the Series E Preferred Stock issuable upon
exchange or conversion of the Note and exercise of the Warrant will
be validly issued, fully paid and nonassessable, and will be free of
any liens or encumbrances.
(iv) Except for (A) the conversion privileges of the Company's Series
A Convertible Preferred Stock, (B) the rights provided in Section 2.3
of the Amended and Restated Shareholder's Agreement dated May 14, 1999
(a Second Amended and Restated Shareholder's Agreement is currently
out for signature) (C) vesting rights of employees under certain Stock
Transfer Agreements entered into in connection with the issuance of
shares (included in subsection (i)(A) above), (D) the rights described
in subsection (ii) above, (E) a Warrant to purchase 7,200 shares of
Common Stock of Akkadix Corporation held by the Salk Institute for
Biological Research, and (F) a stock purchase agreement for 3,690,000
shares of Akkadix Corporation by Pangene Corporation (this transaction
is pending the acceptance of an Amended and Restated Articles of
Incorporation with the
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Secretary of State of California), there are no other outstanding
warrants, options, conversion privileges, or other rights or binding
agreements to purchase or otherwise acquire or issue any equity
securities of the Company.
(d) Reports of the Company; No Material Adverse Changes. The Company has
furnished Lender with copies of its unaudited financial statements for the
fiscal year ending December 31, 1999, and unaudited financial statements
for the quarter ended March 31, 2000 (collectively, the "Financial
Statements"). Said Financial Statements, as of their respective dates,
were accurate and complete in all material respects and did not omit any
material information required to be set forth therein. Since December 31,
1999, there has not been any change in the assets, liabilities, financial
condition or operating results of the Company from that reflected in the
Financial Statements, except changes in the ordinary course of business
that have not been, in the aggregate, materially adverse.
(e) Intellectual Property Rights.
(i) Except as set forth on Schedule 4(e)(i) attached hereto, to the
best of its knowledge, the Company has sufficient title and ownership
or license rights of all patents, trademarks, service marks, trade
names, copyrights, trade secrets, information, proprietary rights,
and processes (collectively, "Intellectual Property") necessary for
its business as now conducted and as proposed to be conducted to the
Company's knowledge, without any conflict with or infringement of the
rights of others;
(ii) Except as set forth on Schedule 4(e)(ii) attached hereto, there
are no outstanding options, licenses, or agreements of any kind
relating to the matters listed in subsection (i) above, or that grant
rights to any other person to manufacture, license, produce, assemble,
market or sell the Company's products, nor is the Company bound by or
a party to any options, licenses, or agreements of any kind with
respect to the Intellectual Property of any other person or entity;
(iii) the Company has not received any written communications (or
oral communications to Xxxx X. Xxxxxxxxxx) alleging that the Company
or its employees has violated or infringed or, by conducting its
business as proposed, would violate or infringe any of the
Intellectual Property of any other person or entity; and
(iv) the Company is not aware that any of its employees is obligated
under any contract (including licenses, covenants, or commitments of
any nature) or other agreement, or subject to any judgment, decree,
or order of
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any court or administrative agency, that would interfere with the
use of such employee's best efforts to promote the interests of the
Company with respect to the Intellectual Property of the Company or
otherwise or that would conflict with the Company's business as
proposed to be conducted.
(f) Security Interests. The grant of security interests in Section 6 of
the Note, when effective by execution of each Note (and the filings
required under the Uniform Commercial Code of the State of California and
U.S. Patent and Trademark Office, when completed), creates a valid,
binding, and perfected security interest (except to the extent that
possession of stock certificates or other instruments is required to
perfect a security interest therein) in the Collateral (as defined in
Section 6 of the Note), free from any and all other liens and
encumbrances.
(g) Compliance With Other Instruments and Laws. The Company is not in
violation or default in any material respect of any provision of its
Articles of Incorporation or bylaws or in any material respect of any
provision of any material mortgage, indenture, agreement, instrument, or
contract to which it is a party or by which it is bound, or of any federal
or state judgment, order, writ, decree, or any federal or state statute,
rule, regulation or restriction applicable to the Company. The execution,
delivery, and performance by the Company of the Transaction Documents, and
the consummation of the transactions contemplated hereby and thereby, will
not result in any such violation or be in material conflict with or
constitute, with or without the passage of time or giving of notice,
either a material default under any such provision or an event that
results in the creation of any material lien, charge or encumbrance upon
any assets of the Company or the suspension, revocation, impairment,
forfeiture or nonrenewal of any material permit, license, authorization,
or approval applicable to the Company, its business or operations, or any
of its assets or properties.
(h) Litigation. There is no action, suit, proceeding, or investigation
pending or, to the best knowledge of the Company, threatened against the
Company that questions the validity of the Transaction Documents, or the
right of the Company to enter into such agreements, or to consummate the
transactions contemplated hereby or thereby, or that might result, either
individually or in the aggregate, in any material adverse change in the
assets, business properties, prospects or financial condition of the
Company.
(i) Taxes. The Company has no material liability for any federal, state or
local taxes, except for taxes which have accrued and are not yet payable
or are being contested by the Company in good faith. The Company has paid
all payroll taxes required to be paid by it.
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(j) Offering. Assuming the accuracy of the representations and warranties of
each Lender contained in Section 5 hereof, the offer, issue, and sale of the
Securities is and will be exempt from the registration and prospectus
delivery requirements of the Securities Act of 1933, as amended (the
"1933 Act"), and has been registered or qualified (or are exempt from
registration and qualification) under the registration, permit, or
qualification requirements of all applicable state securities laws.
5. Representations and Warranties of Lender. Lender hereby represents and
warrants to the Company as follows.
(a) Legal Power. It has the requisite legal power to enter into this
Agreement, to purchase the Securities hereunder, to convert its Note and
exercise its Warrant, and to carry out and perform its obligations under
the terms of this Agreement.
(b) Due Execution. This Agreement has been duly authorized, executed and
delivered by it, and, upon due execution and delivery by the Company, this
Agreement will be a valid and binding agreement of it.
(c) Investment Representations.
(i) It is acquiring the Securities and will acquire any security
issued upon exercise thereof for its own account, not as nominee or
agent, for investment and not with a view to, or for resale in
connection with, any distribution or public offering thereof within
the meaning of the 1933 Act.
(ii) It understands that (A) the Securities have not been registered
under the 1933 Act by Reason of a specific exemption therefrom, that
the Securities must be held by it indefinitely, and that it must,
therefore, bear the economic risk of such investment indefinitely,
unless a subsequent disposition thereof is registered under the 1933
Act or is exempt form such registration; (B) the Securities will be
endorsed with the following legends:
NEITHER THIS [CONVERTIBLE NOTE] [WARRANT] NOR THE UNDERLYING SHARES HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE HOLDER (AS DEFINED
BELOW) MAY NOT TRANSFER THIS [CONVERTIBLE NOTE] [WARRANT], OR ANY SHARES
ISSUED PURSUANT THERETO, UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION
COVERING SUCH [NOTE] WARRANT] OR SUCH SHARES UNDER THE SECURITIES
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ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS, (ii) THE COMPANY FIRST
RECEIVES A LETTER FROM AN ATTORNEY, ACCEPTABLE TO THE BOARD OF DIRECTORS OR ITS
AGENTS, STATING THAT IN THE OPINION OF THE ATTORNEY THE PROPOSED TRANSFER IS
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND UNDER ALL
APPLICABLE STATE SECURITIES LAWS, OR (iii) THE TRANSFER IS MADE PURSUANT TO
RULE 144 UNDER THE SECURITIES ACT OF 1933.
IN ADDITION, THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT
OF FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION AND/OR ITS ASSIGNEE(S), AS
PROVIDED IN THE BY-LAWS OF THE CORPORATION.
and (C) the Company will instruct any transfer agent not to register
the transfer of any of the Securities unless the conditions specified
in the foregoing legend are satisfied, provided, however, that no such
opinion of counsel shall be necessary if the sale, transfer or
assignment is made pursuant to SEC Rule 144 and such transferring
Lender provides the Company with evidence reasonably satisfactory to
the Company and its counsel that the proposed transaction satisfies
the requirements of Rule 144. The Company agrees to remove the
foregoing legend from any securities if the requirements of SEC Rule
144(k) (or any successor rule or regulation) apply with respect to
such securities and the Company and its counsel are provided with
reasonably satisfactory evidence that the requirements of Rule 144(k)
apply.
(iii) It is an investor in securities of companies in the development
stage and acknowledges that it is able to fend for itself, can bear
the economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Securities.
(iv) It is an "accredited investor" within the meaning of SEC Rule 501
of Regulation D, as presently in effect.
(v) It understands that the Securities it is purchasing are
characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws
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and applicable regulations such securities may be resold without
registration under the 1933 Act, only in certain limited
circumstances, and it represents that it is familiar with SEC Rule
144, as presently in effect, and understands the resale limitations
imposed thereby and by the 1933 Act.
(vi) It was not formed for the specific purpose of acquiring the
Securities offered hereunder.
(vii) Its principal business address is as set forth below its name on
the signature pages hereto and it does not reside in any state of the
United States other than the state so specified.
6. Warrant Separate. The Warrant will not be affected by payment of the Note.
7. Conditions to Closing.
(a) Lender's Conditions. Lender's obligations under Section 2 of this
Agreement shall be subject to the fulfillment of the following conditions
to be satisfied before or at Closing:
(i) Lender shall have received the following documents, each executed
by a duly authorized officer of the Company and other applicable parties,
and each effective as of the date of this Agreement and in form and
substance satisfactory to Lender:
(A) The Note;
(B) The Warrant;
(C) A UCC-1 Financing Statement in the form attached hereto as
Exhibit C;
(D) A Confirmation and Grant of Security Interests in
Intellectual Property in the form attached hereto as Exhibit D;
(E) A Side Letter in the form of Exhibit E, where, among other
things, the Company agrees to issue Series E Preferred Stock on the same
terms and conditions and possessing the same rights and preferences as
Series A Preferred Stock (other than price), if no Mezzanine Financing (as
defined in the Note) has occurred when Lender desires to exchange or
convert under the Note or exercise under the Warrant;
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(F) Waivers of the Series A Holders' Rights of First
Refusal and the Series B Holders' Rights of First Offer in the forms attached
hereto as Exhibit F;
(G) An Opinion of Xxxxxx X. Chatroo, counsel to the
Company, in the form attached hereto as Exhibit G; and
(H) Shares of common stock representing the Company's
ownership interest in all subsidiaries of the Company (with stock powers
endorsed in blank); and
(ii) The representations and warranties of the Company contained
in Section 4 shall be true and correct on the Closing Date as
though such representations and warranties had been made on and
as of such date.
(b) Company's Conditions. Company's obligations under Section 2 of
this Agreement shall be subject to the fulfillment of the following
conditions to be satisfied before or at Closing:
(i) Company shall have received waivers of the Series A
Holders' Rights of First Refusal and of the Series B Holder's
Rights of First Offer in the forms attached hereto as Exhibit F;
(ii) The representations and warranties of Lender contained in
Section 5 shall be true and correct on the Closing Date as
though such representations and warranties had been made on and
as of such date; and
(iii) The Company shall have received the purchase price for
the Note and Warrant upon the terms and conditions set forth in
this Agreement.
8. Covenants of the Company.
(a) The Company shall not create or incur or suffer to be created or
incurred any indebtedness other than:
(i) indebtedness related to lease improvements and equipment
purchases for a new 50,000 square foot facility the Company is
presently negotiating a ten year lease for, and a related $850,000
letter of credit in favor of the lessor of that facility to secure
lease payments thereunder;
(ii) trade indebtedness created in the ordinary course of
business;
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and
(iii) indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies.
(b) No payment or declaration of a cash dividend, shall be made on
the common stock of the Company while any obligations under the Note
is outstanding.
(c) No later than 45 days following the end of each quarter, the
Company shall deliver to the Lenders its balance sheet as at the end
of such period and its income statement for such period and for that
portion of the Company's financial reporting year ending with such
period. In addition, no later than 90 days following the end of each
financial reporting year, the Company shall deliver to the Lenders
its balance sheet, income statement, and statement of cash flows for
such year.
9. Miscellaneous
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
(b) This Agreement and the other Transaction Documents constitute the
entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous
agreements, whether written or oral, and shall not be modified except
by a writing signed by the Company and Lender.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
(d) The headings in this Agreement are for convenience only and shall
not alter or otherwise affect the meaning hereof.
(e) No waiver of any of the provisions contained in this Agreement
shall be valid unless made in writing and executed by the waiving
party, it is expressly understood that in the event any party shall
on any occasion fail to perform any term of this Agreement and the
other party shall not enforce that term, the failure to enforce on
that occasion shall not prevent enforcement of that or any other term
hereof on any other occasion. The covenants set forth in Section 8
above shall expire on the Company's indefeasible payment to Lender of
the full amount of the Obligations hereunder, whether pursuant to
cash payment to Lender or the Lender's conversion or exchange thereof
or any combination of the above.
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(f) If any section of this Agreement is held invalid by any law,
rule, order, regulation, or promulgation of any jurisdiction, such
invalidity shall not affect the enforceability of any other sections
not held to be invalid.
(g) This Agreement and any amendment thereof may be executed in two
or more counterparts, each of which shall be deemed an original for
all purposes.
(h) The Company agrees to execute and deliver such further acts and
documents as Lender from time to time reasonably requires for the
assuring and confirming of its rights hereby created or intended now
or hereafter to be created.
(i) All expenses related to this Agreement will be borne by the party
incurring them, except that the Company shall pay reasonable fees and
expenses of one counsel to Lender, in an amount not to exceed $15,000.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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If you are in agreement with the foregoing, please sign the form of acceptance
on the enclosed counterpart of this Agreement and return the same to the
undersigned, whereupon this Agreement shall become a valid and binding contract
between you and the undersigned.
Very truly yours,
AKKADIX CORPORATION,
a California corporation
By: /s/ XXXXXX X. CHATROO
-----------------------------------------
Name: XXXXXX X. CHATROO
---------------------------------------
Title: Exec Vice President and General Counsel
---------------------------------------
The foregoing Agreement is hereby accepted as of the date first written above:
AXYS PHARMACEUTICALS, INC., a
Delaware corporation
By: Axys Pharmaceuticals, Inc.
Its: Advisor and Attorney-in-Fact
By
------------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
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If you are in agreement with the foregoing, please sign the form of acceptance
on the enclosed counterpart of this Agreement and return the same to the
undersigned, whereupon this Agreement shall become a valid and binding contract
between you and the undersigned.
Very truly yours,
AKKADIX CORPORATION,
a California corporation
By:
-----------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
The foregoing Agreement is hereby accepted as of the date first written above:
AXYS PHARMACEUTICALS, INC., a
Delaware corporation
By: Axys Pharmaceuticals, Inc.
Its: Advisor and Attorney-in-Fact
By /s/ XXXXXXX X. XXXXXX
------------------------------------------
Name: XXXXXXX X. XXXXXX
---------------------------------------
Title: SR. VICE PRESIDENT
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SCHEDULE OF EXCEPTIONS
1. Schedule 4(e)(i)
Akkadix is an early stage gene discovery and functional genomics
company developing new plant traits. Its business plan is to license
these traits to other companies for the development and marketing of
products. Commercial research and the introduction of products
containing transgenic traits requires the application of a number of
separate and distinct technologies. These include: the gene or genes
necessary to confer the desired trait(s); germplasm; transformation
and regeneration technology; promoters, enhancers and other
regulatory elements; selectable markets; and terminator sequences,
among others. Many of these technologies have been developed by
others. To the extent that Akkadix does not have access to these
technologies itself, it proposes to collaborate with other companies
with available technologies that permit the development and marketing
of products containing the traits developed by Akkadix. However,
Akkadix does not represent that it has, or will be able to obtain,
all of the rights necessary for the commercialization of any specific
traits.
2. Schedule 4(e)(ii)
Grants of Intellectual Property Rights to Third Parties.
(a) Forage Genetics, Inc.: An exclusive license to make, use, sell
and sublicense the five gene technologies licensed by Akkadix
from the Salk Institute and Noble Foundation solely for use in
Alfalfa. This license includes a first right to negotiate for
licenses to future technologies developed by Akkadix for use in
Alfalfa.
(b) AgriBioTech, Inc.: A license to make, use, sell and sublicense
the five gene technologies licensed by Akkadix from the Salk
Institute and Noble Foundation solely for use in turf grasses
and certain forage crops. The license is exclusive (except for
forage corn), and includes a first right to negotiate for
licenses to future technologies developed by Akkadix for use in
these crops.
(c) American Cyanamid: In connection with a screening agreement for
certain combinatorial chemistry compounds available to Akkadix
from Axys Pharmaceuticals, American Cyanamid has an option to
negotiate for an exclusive license to use the compounds for
products in areas where they have identified biological activity.
(d) 25 agreements with seed various companies for the exchange of
germplasm materials.
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LIST OF AGREEMENTS
AKKADIX CORPORATION
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COMPANY TYPE OF AGREEMENT DATE
========================================================================================================
2. 1999 AGREEMENTS
A/F Protein, Inc. Mutual Non-Disclosure & Confidentiality Agree 10/4/99
AgResearch Confidentiality Agreement 11/19/99
Arena Pharmaceuticals, Inc. Mutual Non-Disclosure Agreement 12/6/99
ASAP Confidentiality Agreement 11/10/99
Axys Pharmaceuticals, Inc. Materials Transfer Agreement 11/9/99
BioScience Securities, Inc. Confidentiality Agreement 10/25/99
Biotechnology Research & Dev. Option Agreement 12/1/99
Center for Biological Sequence Analysis License Agreement -- Signal Software 10/21/99
Xxxx, Xxxxxxx Confidential Info & Invention Assignment Agmt 10/6/99
Comsolv Consulting LLC Confidentiality Agreement 10/28/99
CropTech Confidentiality Agreement 9/21/99
CSIRO Plant Industry Material Transfer Agreement (missing) unknown
Damegen, Inc. Confidentiality Agreement 10/29/99
Xxxxx, Xxxx Reciprocal Confidentiality Agreement 10/5/99
European Molecular Biology Lab. Non-Exclusive License Agmt/Smart-A Database 10/29/99
Gene Pool Confidential Information Agreement 7/7/99
Genetronics, Inc. Confidential Disclosure Agreement 9/27/99
GenSeed, Inc. Confidentiality Agreement 8/10/99
GRDC (Grains Research & Dev.) Confidentiality Agreement 10/9/99
GRDC (Grains Research & Dev.) License Agreement 11/1/99
Xxxxxx, Xxxx Confidentiality Agreement 12/7/99
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INBio Research Agreement 12/1/99
Xxxxx, Xx. Xxxx X. Confidentiality Agreement 10/17/99
Xxxxx, Xxxx Xxxxxx Reciprocal Confidentiality Agreement 7/22/99
Michigan State University Confidential Disclosure Agreement 8/27/99
New Mexico State University Research Agreement 8/1/99
Novartis Seeds AG Materials Transfer Agreement 10/15/99
Ohio State Agree for Obtaining Arabidopsis EST Lib of Clones
Regents of the Univ. of California Mutual Secrecy Agreement for Data 10/21/99
Regents of the Univ. of California Mutual Secrecy Agreement for Data 11/23/99
Romac International Professional Services Agreement 10/5/99
Salk Institute for Biological Studies Blanket Mutual Confidentiality Agreement 11/2/99
SBIR Grant application Phase II of the SBIR Grant/Xxxxxx Xxxxxxxxx 8/11/99
Sephens Inc. Confidentiality Agreement 12/16/99
South Carolina Research Institute Licensing Agreement (USC Disclosure No. 96126) 8/3/99
South Carolina Research Institute Licensing Agreement (USC Disclosure No. 99212) 8/3/99
South Carolina Research Institute Research Agreement 8/3/99
Sycamores, The Rental Agreement 8/20/99
Texagen, Inc. Confidential Disclosure Agreement 11/15/99
Xxxxxx Xxxxxxxxx University Confidential Disclosure Agreement 10/4/99
UniQuest Pty Ltd. Confidentiality Agreement 6/1/99
University of GA Research Found. Research Agreement 10/1/99
University of Rochester Non-Disclosure Agreement 5/7/99
University of South Carolina Confidentiality Agreement 9/30/99
University of Texas Exclusive Option Agreement 8/9/99
University of Texas Sponsored Research Agreement No. UTA99-0280 8/1/99
University of Texas (Texagen, Inc.) Sponsored Research Agreement 8/1/99
Xxxxxx, Xxxx (Professor) Reciprocal Confidentiality Agreement 2/23/99
Zuo, Lin Confidentiality Agreement 9/28/99
3. 2000 AGREEMENTS
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A/F Protein Material Transfer Agreement 1/21/00
AgriBio Tech, Inc. Confidentiality and Non-Use Agreement 1/10/00
Aurora Biosciences Non-disclosure Agreement 1/31/00
Axys Pharmaceuticals, Inc. Modification Agreement 4/28/00
Axys Pharmaceuticals, Inc. receipt for protocols re: Modification
Agreement 5/17/00
Axys Pharmaceuticals, Inc. Consent to proposed transfer - AAT 4/12/00
Battelle Memorial Institute Non-disclosure Agreement 2/29/00
CalTech (California Institute of
Technology) Material Transfer Agreement 2/14/00
CAMBIA Nonexclusive License Agreement 2/3/00
CAMBIA Confidentiality Agreement 1/27/00
Celera XxXxx, Inc. Confidentiality Agreement 1/6/00
Cell Gate, Inc. Confidentiality Agreement 4/14/00
Center for the Application of
Molecular Biology to International
Agriculture Non-Exclusive License Agreement 2/3/00
Colliant, LLC Confidentiality Agreement 5/9/00
CropTech Corporation Confidentiality Agreement 4/12/00
Forage Genetics Confidentiality Agreement 1/6/00
Foundation for Research CDA 2/9/00
Xxxxxxxxx, Xxxxx X. Confidentiality Agreement 3/29/00
Geneformatics, Inc. Mutual Non-Disclosure Agreement 3/20/00
Genesis Res. & Dev. Corp. Ltd. Material Transfer Agreement 4/3/00
Genesis Res. & Dev. Corp. Ltd. Mutual Non-Disclosure Agreement 11/2/00
Genetic Applications LLC Confidentiality Agreement 2/11/00
Genetronics, Inc. Research and License Agreement 3/27/00
Xxxxxxxx XXX 0/00/00
Xxxxx Xxxxxx Confidentiality Agreement 3/30/00
Kyoto University (Xx. Xxxxx Xxxxxxxx) Material Transfer Agreement 3/22/00
MBS Corn Testing Agreement 3/2/00
Xxxxxxxxxx, Xxxxxxx SAB Agreement Extension 1/31/00
Missouri Soybean Merchandising
Council Letter Agreement 2/9/00
On Target CDA 1/12/00
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Orion Genomics, LLC Confidentiality Agreement 1/31/00
Pangene CDA 2/15/00
Pangene Nondisclosure Agreement 2/15/00
PAU Seeds Material Transfer Agreement 3/28/00
PAU Seeds Material Release Agreement - Akkadix 3/21/00
Philippine Rice Research Institute Research and Technology Transfer Agreement 1/1/00
Plant Newco Term Sheet
PLANTCO INC. Formation documents 5/1/00
PLANTCO, INC./"TRAITFINDER" Acquisition Agreement May-00
PLANTCO, INC. Salk/PlantCo License Agreement Apr-00
PLANTCO, INC. Stock Acquisition Agreement 5/1/00
Private Individuals (Russian
Academy of Science Confidentiality Agreement 5/1/00
Producers Natural Processing Corp. CDA 1/27/00
SALK INSTITUTE Warrant to Purchase Stock
SALK-FOUR SCIENTISTS Letter of Intent 2/4/00
Xxxxxxx, Xxx CDA 1/31/00
Xxxxxxxx, Xxxxx, Dr. Confidentiality Agreement 3/29/00
Seed Genetics Inbred Crossing & Testing Agreement 4/6/00
South Carolina Research Institute License Agreement 1/1/00
Tellus CDA 1/26/00
THE SALK INSTITUTE Proposal to license technologies by Plant Biology Lab. 5/1/00
THE SALK INSTITUTE Terms & Conditions to review information 4/25/00
University of California Secrecy Agreement for Data 5/3/00
University of Edinburg Research and License Agreement 2/21/00
University of Missouri Proposed Term Sheet -- Research Funding 2/22/00
University of Rochester License Agreement 5/5/00
University of So. Carolina License Agreement 1/1/00
Vitality Biotechnologies, Inc. Confidentiality Agreement 2/11/00
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NEITHER THIS CONVERTIBLE NOTE NOR THE UNDERLYING SHARES HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE HOLDER (AS DEFINED BELOW) MAY NOT TRANSFER
THIS CONVERTIBLE NOTE, OR ANY SHARES ISSUED PURSUANT TO ITS CONVERSION
PROVISION, UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION COVERING SUCH NOTE OR
SUCH SHARES UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES
LAWS, (ii) THE COMPANY FIRST RECEIVES A LETTER FROM AN ATTORNEY, ACCEPTABLE TO
THE BOARD OF DIRECTORS OR ITS AGENTS, STATING THAT IN THE OPINION OF THE
ATTORNEY THE PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933 AND UNDER ALL APPLICABLE STATE SECURITIES LAWS, OR (iii) THE
TRANSFER IS MADE PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OF 1933.
AKKADIX CORPORATION
8% CONVERTIBLE SECURED
NOTE DUE SEPTEMBER 11, 2001
AND SECURITY AGREEMENT
FOR VALUE RECEIVED, Akkadix Corporation, a California corporation (the
"Company"), hereby promises to pay, subject to the exchange and conversion
provisions in Section 7 herein, to Axys Pharmaceuticals, Inc., a Delaware
corporation (the "Lender" or "Holder"), the principal sum of TWO MILLION DOLLARS
($2,000,000) plus interest plus enforcement costs (including, but not limited
to, reasonable attorney fees) thereon (collectively, the "Obligations") on the
earlier of: (i) September 11, 2001, or (ii) the first business day immediately
following such date as the Company receives any cash or other proceeds totaling
$8,000,000 (or $10,000,000 if the Holder does not exchange the Obligations under
this Note at the closing of the Mezzanine Financing (as defined below)) or more
from the date hereof with respect to a financing (the "Mezzanine Financing")
(such date in (i) or (ii) above being the "Maturity Date").
Section 1. Interest. Interest on the outstanding principal amount shall be
cumulative, accrue at the rate of 8% per annum or, if lower, the maximum rate
permitted by law, and be paid in cash unless this note and security agreement
("Note") is converted pursuant to Section 7 hereof, in which case interest may,
at the Holder's election, be paid in Series E Preferred Stock.
Section 2. Bridge Financing Agreement. This Note has been issued pursuant to a
Bridge Financing Agreement (the "Bridge Financing Agreement") dated as of the
date hereof by and among the Company and the Holder. The Company shall keep or
cause to be kept at its principal office appropriate records for the recordation
of the name and address of the
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Holder, which address may be changed from time to time effective ten (10) days
after receipt of written notice of such change from the Holder.
Section 3. Default. The occurrence of one or more of the following events shall
constitute an event of default ("Event of Default"):
3.1 The Company shall fail to pay the Obligations on the Maturity Date when the
same shall have become due and payable.
3.2 The Company shall fail to pay any of its debts (other than the Obligations
under this Note) when the same shall have become due and payable.
3.3 The entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization arrangement, adjustment, or composition
of or in respect of the Company under the federal Bankruptcy Act or any other
applicable federal or state law, or appointing a receiver, liquidator, assignee,
or trustee of the Company, or any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of sixty (60) consecutive
days.
3.4 The institution by the Company of proceedings to be adjudicated a bankrupt
or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the federal Bankruptcy Act or
any other applicable federal or state law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee, or
trustee of the Company, or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such action.
3.5 The Company shall fail to perform or observe any material covenant contained
in the Bridge Financing Agreement or any material term or agreement set forth in
this Note.
Section 4. Acceleration. Upon an Event of Default, all Obligations shall become
immediately due and payable to the Holder without presentment, demand, protest
or other notice of any kind, all of which are expressly waived by the Company.
Section 5. Status of Note. The rights of the Holder, under the terms of this
Note shall be superior to any obligation due any holder of the common shares of
the Company arising solely out of the fact that such person is an owner of the
common shares of the Company.
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Section 6. Creation of Security Interest. The Company hereby grants to the
Holder a security interest, in all of the Company's right, title and interest in
and to the following collateral, whether now owned or hereinafter acquired (the
"Collateral"):
6.1 All accounts, contract rights, chattel paper, instruments, deposit accounts,
general intangibles for money due or to become due, and all obligations of any
kind from any party to the Company.
6.2 All inventory and equipment in all of its forms, wherever located, and all
other goods and personal property of the Company.
6.3 All intellectual property of the Company, including, but not limited to, any
and all: (i) patents, patent rights, patent registrations and applications,
patent licenses, claims and rights against third parties for past, present or
future infringement of any patents, and all corresponding and related rights
throughout the world; (ii) copyrights, copyright registrations and applications,
rights to make and exploit all derivative work based on such copyrights,
copyright licenses, claims and rights against third parties for past, present or
future infringement of any copyrights, and all corresponding and related rights
throughout the world; (iii) trademarks, tradenames, corporate names, company
names, business names, fictitious business names, trade styles, service marks,
logos and other designs, and any related registrations and applications related
to the foregoing, licenses, claims and rights against third parties for past,
present or future infringement of any of the foregoing rights, and all
corresponding and related rights throughout the world.
6.4 All proceeds of any and all of the foregoing Collateral and all interest,
principal, royalties, license fees, rents, dividends, cash, instruments or other
property from time to time received, receivable or otherwise distributed in
respect of, or in exchange for, the Collateral, and, to the extent not otherwise
included, any and all: (i) payments under insurance to the Company (regardless
of whether the Company or the Lender is loss payee), or any indemnity, warranty
or guaranty payable by reason of loss or damage to such Collateral, and (ii)
cash.
Section 7. Exchange; Conversion.
7.1 The Holder of this Note shall have the right, at the Holder's option, to
exchange or convert the Obligations under this Note as follows:
7.1.1 The Holder may exchange the Obligations under this Note into
Series E Preferred Stock of the Company which are sold and issued by the Company
in the Mezzanine Financing on the same terms and conditions of such Mezzanine
Financing and on the closing date of such Mezzanine Financing or at any time
thereafter.
7.1.2 If, on the earlier of (i) the Maturity Date, or (ii) the date of
an Event of Default, no Mezzanine Financing has occurred to set the terms and
conditions of
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exchange of Obligations for Series E Preferred Stock, then Holder may convert
the Obligations under this Note on such date (or at any time thereafter) into
the Company's Series E Preferred Stock, $0.001 par value, and such Series E
Preferred Stock shall be issued on the same terms and conditions (other than
price) as the Company's currently outstanding Series A Preferred Stock at a per
share price of Series E Preferred Stock to be mutually agreed to by the parties
at such time.
7.2 In the event of an exercise of this Section 7, the Holder may exchange or
convert all or part of Obligations under this Note. In order to exchange or
convert, the Holder must surrender this Note to the Company at the Company's
principal offices and the Company shall, as promptly as practicable after the
surrender, deliver to the Holder a certificate or certificates representing the
number of fully paid and nonassessable shares of the Company into which such
Note may be exchanged or converted and a new Note evidencing any unexchanged or
unconverted Obligations.
7.3 The number of shares of Company stock which shall be delivered on exchange
or conversion of the Obligations under this Note shall be an amount determined
by dividing the amount of the Obligations under this Note by the applicable
exchange or conversion price as determined in accordance with this Section 7,
and rounding the result down to the nearest share. The conversion price from
time to time specified in Section 7.1.2 above shall be the "Original Conversion
Price", and the adjusted conversion price shall be the "Conversion Price".
7.4 No fractional shares of stock or scrip shall be issued upon conversion of
this Note. Instead of any fractional shares of stock which would otherwise be
issuable upon conversion of this Note, the Company shall pay a cash adjustment
in respect of such fractional interest in an amount equal to the then current
market price of such fractional interest.
Section 8. Covenants of the Company. The Company agrees that it will comply with
the covenants set forth in Section 8 of the Bridge Financing Agreement.
Section 9. Assignment, Exchange, or Loss of Note. Subject to the transfer
restrictions herein, upon presentation and surrender of this Note to the Company
at its principal office with a duly executed request for assignment and funds
sufficient to pay any transfer tax, the Company shall, without charge, execute
and deliver a new Note in the name of the assignee named in such instrument of
assignment and this Note shall promptly be canceled.
Section 10. Rights of the Holder. The Holder shall not, by virtue of the
provisions in this Note, be entitled to any rights of a shareholder in the
Company, either at law or equity.
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Section 11. Anti-Dilution Provisions. The number and kind of securities
purchasable upon the conversion (but not the exchange) of the Obligations under
this Note shall be subject to adjustment from time to time as follows:
11.1 In case the Company shall: (i) pay a dividend or make a distribution on the
outstanding common stock of the Company (the "Common Stock") payable in common
shares, (ii) subdivide the outstanding Common Stock into a greater number of
shares, (iii) combine the outstanding Common Stock into a lesser number of
shares, or (iv) issue by reclassification of the Common Stock any common shares
of the Company, the Holder of this Note shall thereafter be entitled, upon
conversion, to receive the number and kind of shares which, if this Note had
been converted immediately prior to the happening of such event, the Holder
would have owned upon such conversion (and conversion of the Series E Preferred
Stock into Common Stock) and been entitled to receive upon such dividend,
distribution, subdivision, combination, or reclassification. Such adjustment
shall become effective on the day next following (x) the record date of such
dividend or distribution or (y) the day upon which such subdivision,
combination, or reclassification shall become effective.
11.2 This Note shall also be subject to the following adjustment:
11.2.1 If at any time or from time to time after the "Closing Date" (as
defined in the Bridge Financing Agreement), the Company issues or sells, or is
deemed by the express provisions of this subsection to have issued or sold,
Additional Shares of Common Stock (as hereinafter defined), other than as
provided in Section 11.1, for an Effective Price (as hereinafter defined) less
than the then existing Conversion Price, then and in each such case the then
existing Conversion Price for this Note shall be reduced, as of the opening of
business on the date of such issue or sale, to a price determined by multiplying
the then existing Conversion Price by a fraction: (i) the numerator of which
shall be (A) the number of shares of Common Stock deemed outstanding (as defined
below) immediately prior to such issue or sale, plus (B) the number of shares of
Common Stock which the aggregate consideration received (as defined in
subsection 11.2.2) by the Company for the total number of Additional Shares of
Common Stock so issued would purchase at the then existing Conversion Price, and
(ii) the denominator of which shall be the number of shares of Common Stock
deemed outstanding (as defined below) immediately prior to such issue or sale
plus the total number of Additional Shares of Common Stock so issued. For the
purposes of the preceding sentence, the number of shares of Common Stock deemed
to be outstanding as of a given date shall be the sum of (A) the number of
shares of Common Stock actually outstanding, and (B) the number of shares of
Common Stock into which the then outstanding shares of Preferred Stock could be
converted if fully converted on the day immediately preceding the given date.
11.2.2 For the purpose of making any adjustment required under this
Section 11.2, the consideration received by the Company for any issue or sale of
securities shall (A) to
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the extent it consists of cash, be computed at the net amount of cash received
by the Company after deduction of any underwriting or similar commissions,
compensation or concessions paid or allowed by the Company in connection with
such issue or sale but without deduction of any expenses payable by the Company,
(B) to the extent it consists of property other than cash, be computed at the
fair value of that property as determined in good faith by the Board of
Directors, and (C) if Additional Shares of Common Stock, Convertible Securities
(as hereinafter defined) or rights or options to purchase either Additional
Shares of Common Stock or Convertible Securities are issued or sold together
with other stock or securities or other assets of the Company for a
consideration which covers both, be computed as the portion of the consideration
so received that may be reasonably determined in good faith by the Board of
Directors to be allocable to such Additional Shares of Common Stock, Convertible
Securities or rights or options.
11.2.3 For the purpose of the adjustment required under this Section
11.2, if the Company issues or sells any rights or options for the purchase of,
or stock or other securities convertible into, Additional Shares of Common Stock
(such convertible stock or securities being herein referred to as "Convertible
Securities") and if the Effective Price of such Additional Shares of Common
Stock is less than the Original Exercise Price, in each case the Company shall
be deemed to have issued at the time of the issuance of such rights or options
or Convertible Securities the maximum number of Additional Shares of Common
Stock issuable upon exercise or conversion thereof and to have received as
consideration for the issuance of such shares an amount equal to the total
amount of the consideration, if any, received by the Company for the issuance of
such rights or options or Convertible Securities, plus, in the case of such
rights or options, the minimum amount of consideration, if any, payable to the
Company upon the exercise of such rights or options, plus, in the case of
Convertible Securities, the minimum amount of consideration, if any, payable to
the Company (other than by cancellation of liabilities or obligations evidenced
by such Convertible Securities) upon the conversion thereof, provided that if in
the case of Convertible Securities the minimum amount of such consideration
cannot be ascertained, but are a function of antidilution or similar protective
clauses, the Company shall be deemed to have received the minimum amounts of
consideration without reference to such clauses; provided further that if the
minimum amount of consideration payable to the Company upon the exercise or
conversion of rights, options or Convertible Securities is reduced over time or
on the occurrence or non-occurrence of specified events other than by reason of
antidilution adjustments, the Effective Price shall be recalculated using the
figure to which such minimum amount of consideration is reduced; provided
further that if the minimum amount of consideration payable to the Company upon
the exercise or conversion of such rights, options or Convertible Securities is
subsequently increased, the Effective Price shall be again recalculated using
the increased minimum amount of consideration payable to the Company upon the
exercise or conversion of such rights, options or Convertible Securities. No
further adjustment of the then existing Conversion Price, as adjusted upon
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the issuance of such rights, options or Convertible Securities, shall be made as
a result of the actual issuance of Additional Shares of Common Stock on the
exercise of any such rights or options or the conversion of any such Convertible
Securities. If any such rights or options or the conversion privilege
represented by any such Convertible Securities shall expire without having been
exercised, the then existing Conversion Price as adjusted upon the issuance of
such rights, options or Convertible Securities shall be readjusted to the
conversion price which would have been in effect had an adjustment been made on
the basis that the only Additional Shares of Common Stock so issued were the
Additional Shares of Common Stock, if any, actually issued or sold on the
exercise of such rights or options or rights of conversion of such Convertible
Securities, and such Additional Shares of Common Stock, if any, were issued or
sold for the consideration actually received by the Company upon such exercise,
plus the consideration, if any, actually received by the Company for the
granting of all such rights or options, whether or not exercised, plus the
consideration received for issuing or selling the Convertible Securities
actually converted, plus the consideration, if any, actually received by the
Company (other than by cancellation of liabilities or obligations evidenced by
such Convertible Securities) on the conversion of such Convertible Securities,
provided that such readjustment shall not apply to prior conversions of Notes.
11.2.4. "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company or deemed to be issued pursuant to this
Section 11.2, whether or not subsequently reacquired or retired by the Company
other than (1) shares of Common Stock issued upon conversion of the Preferred
Stock and the Notes and upon exercise of warrants issued to the Holder of the
Note on the date hereof, (2) shares of Common Stock and/or options, warrants or
other Common Stock purchase rights, and the Common Stock issued pursuant to such
options, warrants or other rights (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like) after the Closing Date to
employees, officers or directors of, or consultants or advisors to the Company
or any subsidiary pursuant to stock purchase or stock option plans or other
arrangements that are approved by the Board, provided that in aggregate no more
than 2,507,200 shares of such Common Stock is issued, (3) shares of Common Stock
issued pursuant to the exercise of options, warrants or convertible securities
outstanding as of the Closing Date, and (4) shares of Common Stock issued in
connection with equipment leasing or bank financing transactions approved by the
Company's Board of Directors. The "Effective Price" of Additional Shares of
Common Stock shall mean the quotient determined by dividing the total number of
Additional Shares of Common Stock issued or sold, or deemed to have been issued
or sold by the Company under this Section 11.2, into the aggregate consideration
received, or deemed to have been received by the Company for such issue under
this Section 11.2, for such Additional Shares of Common Stock.
11.3 If at any time the Company is required to issue shares of its common shares
in excess of the number of common shares then authorized, both the Company and
the
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Holder shall cooperate in taking any and all steps necessary to increase the
number of authorized common shares of the Company to effectuate the purposes of
this Section 11.
11.4 Irrespective of any adjustments in the number or kind of shares to be
received upon conversion of this Note, the form of Note theretofore or
thereafter issued may continue to express the number and kind of shares as are
stated in this Note.
Section 12. Restrictions on Transfer. This Note has not been registered under
the Securities Act of 1933. This Note, or any right hereunder, may not be
enforced against the Company by any Holder, except the original Holder herein,
(i) unless there is an effective registration covering such note or underlying
shares under the Securities Act of 1933 and applicable state securities laws,
(ii) unless the Company receives an opinion of an attorney acceptable to the
board of directors or its agents, that the proposed transfer of the Note
complies with the requirements of the Securities Act of 1933 and any relevant
state securities law, or (iii) unless the transfer is made pursuant to Rule 144
under the Securities Act of 1933.
Section 13. Notices. All notices and other communications required or permitted
under this Note shall be validly given, made, or served if in writing and
delivered personally, via overnight courier or sent by registered mail, to the
Company at the following address:
Akkadix Corporation
00000 Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xx Xxxxx, XX 00000
Attn: Xxxxxx X. Chatroo
All notices and other communications required or permitted under this Note shall
be validly given, made or served if in writing and delivered personally, via
overnight courier or sent by registered mail, to the Holder at the following
address:
Axys Pharmaceuticals, Inc.
000 Xxxxxxx Xxx
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Section 14. Law Governing. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California.
Section 15. Titles and Captions. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
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Section 16. Computation of Time. In computing any period of time pursuant to
this Agreement, the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a Saturday, Sunday,
or a legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday, or legal holiday.
Section 17. Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
Section 18. Further Assurances. The Company shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement,
including, but not limited to, taking any action to perfect Lender's security
interests granted herein.
Section 19. Parties in Interest. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
IN WITNESS WHEREOF, a duly authorized officer of Akkadix Corporation has
executed this Note to be effective on this 11th day of September, 2000.
AKKADIX CORPORATION
By: /s/ XXXXXX X. CHATROO
------------------------------------
Name: Xxxxxx X. Chatroo
----------------------------------
Title: Exec. V.P. and General Counsel
---------------------------------
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VOID AFTER 5:00 P.M. PACIFIC TIME, ON SEPTEMBER 11, 2005
NEITHER THIS WARRANT NOR THE UNDERLYING SHARES HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THE HOLDER (AS HEREINAFTER DEFINED) MAY NOT TRANSFER
THIS WARRANT OR ANY SHARES ISSUED PURSUANT TO ITS EXERCISE PROVISION UNLESS (i)
THERE IS AN EFFECTIVE REGISTRATION COVERING SUCH WARRANT OR SUCH SHARES, AS THE
CASE MAY BE, UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES
LAWS, (ii) THE COMPANY FIRST RECEIVES A LETTER FROM AN ATTORNEY, ACCEPTABLE TO
THE BOARD OF DIRECTORS OR ITS AGENTS, STATING THAT IN THE OPINION OF THE
ATTORNEY THE PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES
ACT OF 1933 AND UNDER ALL APPLICABLE STATE SECURITIES LAWS, OR (iii) THE
TRANSFER IS MADE PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OF 1933.
AKKADIX CORPORATION
WARRANT CERTIFICATE
FOR THE PURCHASE OF SERIES E PREFERRED STOCK
FOR VALUE RECEIVED, Akkadix Corporation, a California corporation (the
"Company"), hereby certifies that Axys Pharmaceuticals, Inc. or its assigns (the
"Holder"), is entitled, subject to the provisions of this Warrant Certificate
("Warrant"), to purchase from the Company at any time, or from time to time
during the period commencing on the date hereof and expiring at 5:00 p.m.
Pacific Time, on September 11, 2005 (the "Expiration Date"), up to Two Hundred
Thousand (200,000) fully paid and non-assessable shares of Series E Preferred
Stock (as hereinafter defined), at a per share price (the "Original Exercise
Price") equal to (i) the conversion price under the 8% Convertible Secured Note
Due September 11, 2001 and Security Agreement (the "Note") pursuant to Section
7.1.2 of the Note, or (ii) the exchange price under the Note set forth in
Section 7.1.1 if a Mezzanine Financing (as defined in the Note) has occurred
before September 11, 2001. Capitalized terms are used herein as defined in the
Note unless otherwise defined herein. The Original Exercise Price may be
adjusted as herein provided (as may be adjusted, the "Exercise Price").
The term "Series E Preferred Stock" means the Series E Convertible Preferred
Stock, par value $.001 per share, of the Company, which terms and conditions
shall be the same as the Series E Preferred Stock referred to in the Note,
together with any other equity securities that may be issued by the Company in
respect thereof or in substitution therefor. The number of shares of Series E
Preferred Stock to be received upon the exercise of this Warrant may be adjusted
from time to time as hereinafter set forth. The shares of Series
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E Preferred Stock deliverable or delivered upon such exercise, as adjusted from
time to time, are hereinafter referred to as "Warrant Stock".
Upon receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction, mutilation or partial exercise of this Warrant, and in
the case of loss, theft, destruction, mutilation or partial exercise of
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated or partially exercised, the Company shall execute and
deliver a new Warrant, of like tenor and date for the appropriate number of
shares that the Holder is entitled to purchase.
Section 1. Vesting. There shall be no vesting period for the Warrant, as this
warrant shall vest in full on the date hereof.
Section 2. Exercise of Warrant.
2.1 General Procedure. This Warrant may be exercised, subject to the
requirements set forth below, in whole, or in part, at any time during the
period commencing on the Effective Date and expiring at 5:00 p.m. Pacific Time
on the Expiration Date, or, if such day is a day on which banking institutions
in San Francisco, California are authorized by law to close, then on the next
succeeding day that shall not be such a day, by presentation and surrender of
this warrant to the company at its principal office and, subject to Section 8,
delivery of the Warrant Exercise Form attached hereto as Exhibit A duly executed
accompanied by payment (either in cash or by certified or official bank check,
payable to the order of the Company) of the aggregate Exercise Price for the
number of shares specified in such form and instruments of transfer, if
appropriate, duly executed by the Holder. If this Warrant should be exercised in
part only, the Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the rights of the Holder thereof to
purchase the balance of the shares purchasable hereunder.
2.2 Series E Preferred Stock Delivery. Upon receipt by the Company of this
Warrant, together with the Exercise Price, at its office in proper form for
exercise as described above, together with an agreement to comply with the
restrictions on transfer and related covenants contained herein and a
representation as to investment intent and any other matter required by counsel
to the Company, signed by the Holder (and if other than the original Holder
accompanied by proof, satisfactory to counsel for the Company, of the right of
such person or persons to exercise the Warrant), the Holder shall be deemed to
be the holder of record of the shares of Series E Preferred Stock issuable upon
such exercise, even if the stock transfer books of the Company shall then be
closed or certificates representing such shares of Series E Preferred Stock
shall not have been delivered to the Holder. The Holder shall pay any and all
documentary stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Series E Preferred Stock on
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exercise of this Warrant. The Company shall promptly thereafter issue
certificate(s) evidencing the Series E Preferred Stock so purchased.
Section 3. Reservation of Shares. The Company shall at all times reserve for
issuance and delivery upon exercise of this Warrant 200,000 shares (as adjusted)
of Preferred Stock (to be designable into Series E Preferred Stock) or other
shares of capital stock of the Company (and other securities) from time to time
receivable upon exercise of this Warrant. All such shares (and other securities)
shall be duly authorized and, when issued upon exercise, shall be validly
issued, fully paid and non-assessable.
Section 4. No Fractional Shares. No fractional shares or script representing
fractional shares shall be issued upon the exercise of this Warrant, but the
Company shall pay the Holder an amount equal to the Fair Market Value of such
fractional share of Common Stock in lieu of each fraction of a share otherwise
called for upon any exercise of this Warrant. For purposes of this Warrant, the
Fair Market Value of a share of Common Stock shall equal the closing sale price
(or if not available the average of the closing bid and asked prices) on the
business day prior to exercise of this Warrant, or, if the Common Stock is then
not publicly traded, then the price determined in good faith by the Board of
Directors of the Company.
Section 5. Transfer.
5.1 Securities Laws. Neither this Warrant nor the Warrant Stock have been
registered under the Securities Act of 1933. The Company will not transfer this
Warrant or the Warrant Stock unless (i) there is an effective registration
covering such Warrant or such shares, as the case may be, under the Securities
Act of 1933 and applicable states securities laws, (ii) it first receives a
letter from an attorney, acceptable to the Company's board of directors or its
agents, stating that in the opinion of the attorney the proposed transfer is
exempt from registration under the Securities Act of 1933 and under all
applicable state securities laws, or (iii) the transfer is made pursuant to Rule
144 under the Securities Act of 1933.
5.2 Conditions to Transfer. Prior to any such proposed transfer, and as a
condition thereto, if such transfer is not made pursuant to an effective
registration statement under the Securities Act, the Holder will, if requested
by the Company, deliver to the Company (i) an investment covenant signed by the
proposed transferee, (ii) an agreement by such transferee that the restrictive
investment legend set forth above be placed on the certificate or certificates
representing the securities acquired by such transferee, (iii) an agreement by
such transferee that the Company may place a "stop transfer order" with its
transfer agent or registrar, and (iv) an agreement by the transferee to
indemnify the Company to the same extent as set forth in the next succeeding
paragraph.
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5.3 Holdback Period and Transfer. Except as specifically restricted hereby, this
Warrant and the Warrant Stock issued may be transferred by the Holder in whole
or in part at any time or from time to time. In the event that the Company
publicly offers shares of its Common Stock, the Warrant Stock (if converted into
Common Stock of the Company) may not be sold from the date of the Company's
initial public offering of securities for a period ending six months after the
conclusion of such initial public offering. Upon surrender of this Warrant to
the Company or at the office of its stock transfer agent, if any, with an
appropriate assignment form duly executed and funds sufficient to pay any
transfer tax, and upon compliance with the foregoing provisions, the Company
shall, without charge, execute and deliver a new Warrant in the name of the
assignee named in such instrument of assignment, and this Warrant shall promptly
be canceled. Any assignment, transfer, pledge, hypothecation or other
disposition of this Warrant attempted contrary to the provisions of this
Warrant, or any levy of execution, attachment or other process attempted upon
this Warrant, shall be null and void and without effect.
Section 6. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant.
Section 7. Anti-Dilution Provisions.
7.1 Stock Splits, Dividends, Etc.
7.1.1 If the Company shall at any time subdivide its outstanding shares
of Common Stock by recapitalization, reclassification or split-up thereof, or if
the Company shall declare a stock dividend or distribute shares of Common Stock
to its stockholders, the number of shares of Series E Preferred Stock (on an
as-converted basis into Common Stock) purchasable under this Warrant immediately
prior to such subdivision shall be proportionately increased (unless such
anti-dilution adjustment has already been effected through a conversion price
adjustment on existing Series E Preferred Stock after a Mezzanine Financing),
and if the Company shall at any time combine the outstanding shares of Series E
Preferred Stock by recapitalization, reclassification or combination thereof,
the number of shares of Series E Preferred Stock (on an as-converted basis into
Common Stock) purchasable under this Warrant immediately prior to such
combination shall be proportionately decreased. Any such adjustment and
adjustment to the number of shares purchasable and the Exercise Price pursuant
to this Section shall be effective at the close of business on the effective
date of such subdivision or combination, or if any adjustment is the result of a
stock dividend or distribution then the effective date for such adjustment based
thereon shall be the record date therefor.
7.1.2 Whenever the number of shares of Series E Preferred Stock
purchasable upon the exercise of this Warrant is adjusted as provided in this
Section, the Exercise
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Price shall be adjusted to the nearest cent by multiplying such Exercise Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of shares of Series E Preferred Stock purchasable upon the
exercise immediately prior to such adjustment, and (y) the denominator of which
shall be the number of shares of Series E Preferred Stock so purchasable
immediately thereafter.
7.2 Adjustment for Reorganization, Consolidation, Merger, Etc. In case of any
reorganization of the Company (or any other corporation, the securities of which
are at the time receivable on the exercise of this Warrant) or in case the
Company (or any such other corporation) shall consolidate with or merge into
another corporation or convey all or substantially all of its assets to another
corporation, then, and in each such case, the Holder of this Warrant may,
immediately prior to such transaction, exercise as provided in Section 2, or, at
any time after the consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, in lieu of the securities and property
receivable upon the exercise of this Warrant prior to such consummation, the
securities or property to which such Holder would have been entitled upon such
consummation if such Holder had exercised this Warrant immediately prior
thereto; in each such case, the terms of this Warrant shall be applicable to the
securities or property received upon the exercise of this Warrant after such
consummation.
7.3 Certificate as to Adjustments. In each case of an adjustment in the number
of shares of Series E Preferred Stock receivable on the exercise of this
Warrant, the Company at its expense shall promptly compute such adjustment in
accordance with the terms of the Warrant and prepare a certificate executed by
an officer of the Company setting forth such adjustment and showing the facts
upon which such adjustment is based. The Company shall forthwith mail a copy of
each such certificate to each Holder.
7.4 Anti-Dilution Adjustment. This Warrant shall also be subject to the
following adjustment (unless such anti-dilution adjustment has already been
effected through a conversion price adjustment on existing Series E Preferred
Stock after a Mezzanine Financing) in the event:
7.4.1 If at any time or from time to time after the "Closing Date" (as
defined in the Bridge Financing Agreement, of even date herewith, between the
Company and the Holder), the Company issues or sells, or is deemed by the
express provisions of this subsection to have issued or sold, Additional Shares
of Common Stock (as hereinafter defined), other than as provided in Section 7.1,
for an Effective Price (as hereinafter defined) less than the then existing
Exercise Price, then in each such case the number of Series E Preferred Stock
shares purchasable shall be increased, as of the opening of business on the date
of such issue or sale, to a number determined by multiplying the number of
Series E Preferred Stock shares theretofore purchasable by a fraction: (ii) the
denominator of which shall be (A) the number of shares of Common Stock deemed
outstanding (as defined below) immediately prior to such issue or sale, plus (B)
the
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number of shares of Common Stock which the aggregate consideration received (as
defined in subsection 7.4.2) by the Company for the total number of Additional
Shares of Common Stock so issued would purchase at the then existing Exercise
Price, and (i) the numerator of which shall be the number of shares of Common
Stock deemed outstanding (as defined below) immediately prior to such issue or
sale plus the total number of Additional Shares of Common Stock so issued. For
the purposes of the preceding sentence, the number of shares of Common Stock
deemed to be outstanding as of a given date shall be the sum of (A) the number
of shares of Common Stock actually outstanding, and (B) the number of shares of
Common Stock into which the then outstanding shares of all securities
convertible into Common Stock could be converted if fully converted on the day
immediately preceding the given date.
7.4.2 For the purpose of making any adjustment required under this
Section 7.4, the consideration received by the Company for any issue or sale of
securities shall (A) to the extent it consists of cash, be computed at the net
amount of cash received by the Company after deduction of any underwriting or
similar commissions, compensation or concessions paid or allowed by the Company
in connection with such issue or sale but without deduction of any expenses
payable by the Company, (B) to the extent it consists of property other than
cash, be computed at the fair value of that property as determined in good faith
by the Board of Directors, and (C) if Additional Shares of Common Stock,
Convertible Securities (as hereinafter defined) or rights or options to purchase
either Additional Shares of Common Stock or Convertible Securities are issued or
sold together with other stock or securities or other assets of the Company for
a consideration which covers both, be computed as the portion of the
consideration so received that may be reasonably determined in good faith by the
Board of Directors to be allocable to such Additional Shares of Common Stock,
Convertible Securities or rights or options.
7.4.3 For the purpose of the adjustment required under this Section 7.4,
if the Company issues or sells any rights or options for the purchase of, or
stock or other securities convertible into Additional Shares of Common Stock
(such convertible stock or securities being herein referred to as "Convertible
Securities") and if the Effective Price of such Additional Shares of Common
Stock is less than the then existing Exercise Price, in each case the Company
shall be deemed to have issued at the time of the issuance of such rights or
options or Convertible Securities the maximum number of Additional Shares of
Common Stock issuable upon exercise or conversion thereof and to have received
as consideration for the issuance of such shares an amount equal to the total
amount of the consideration, if any, received by the Company for the issuance of
such rights or options or Convertible Securities, plus, in the case of such
rights or options, the minimum amounts of consideration, if any, payable to the
Company upon the exercise of such rights or options, plus, in the case of
Convertible Securities, the minimum amounts of consideration, if any, payable to
the Company (other than by cancellation of liabilities or obligations evidenced
by such Convertible Securities) upon the conversion thereof;
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provided that if in the case of Convertible Securities the minimum amounts of
such consideration cannot be ascertained, but are a function of antidilution or
similar protective clauses, the Company shall be deemed to have received the
minimum amounts of consideration without reference to such clauses; provided
further that if the minimum amount of consideration payable to the Company upon
the exercise or conversion of rights, options or Convertible Securities is
reduced over time or on the occurrence or nonoccurrence of specified events
other than by reason of antidilution adjustments, the Effective Price shall be
recalculated using the figure to which such minimum amount of consideration is
reduced, provided further that if the minimum amount of consideration payable to
the Company upon the exercise or conversion of such rights, options or
Convertible Securities is subsequently increased, the Effective Price shall be
again recalculated using the increased minimum amount of consideration payable
to the Company upon the exercise or conversion of such rights, options or
Convertible Securities. No further adjustment of the then existing Exercise
Price, as adjusted upon the issuance of such rights, options or Convertible
Securities, shall be made as a result of the actual issuance of Additional
Shares of Common Stock on the exercise of any such rights or options or the
conversion of any such Convertible Securities. If any such rights or options or
the conversion privilege represented by any such Convertible Securities shall
expire without having been exercised, the then existing Exercise Price as
adjusted upon the issuance of such rights, options or Convertible Securities
shall be readjusted to the exercise price which would have been in effect had an
adjustment been made on the basis that the only Additional Shares of Common
Stock so issued were the Additional Shares of Common Stock, if any, actually
issued or sold on the exercise of such rights or options or rights of conversion
of such Convertible Securities, and such Additional Shares of Common Stock, if
any, were issued or sold for the consideration actually received by the Company
upon such exercise, plus the consideration, if any, actually received by the
Company for the granting of all such rights or options, whether or not
exercised, plus the consideration received for issuing or selling the
Convertible Securities actually converted, plus the consideration, if any,
actually received by the Company (other than by cancellation of liabilities or
obligations evidenced by such Convertible Securities) on the conversion of such
Convertible Securities, provided that such readjustment shall not apply to prior
exercise of this Warrant.
7.4.4 "Additional Shares of Common Stock" shall mean all shares of
Common Stock issued by the Company or deemed to be issued pursuant to this
Section 7.4, whether or not subsequently reacquired or retired by the Company
other than (1) shares of Common Stock issued upon conversion of the Preferred
Stock and the Notes and upon exercise of warrants issued to the Holder of the
Note on the date hereof, (2) shares of Common Stock and/or options, warrants or
other Common Stock purchase rights, and the Common Stock issued pursuant to such
options, warrants or other rights (as adjusted for any stock dividends,
combinations, splits, recapitalizations and the like) after the Closing Date to
employees, officers or directors of, or consultants or advisors to the Company
or
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any subsidiary pursuant to stock purchase or stock option plans or other
arrangements that are approved by the Board, provided that in aggregate no more
than 2,507,200 shares of such Common Stock is issued, (3) shares of Common Stock
issued pursuant to the exercise of options, warrants or convertible securities
outstanding as of the Closing Date, and (4) shares of Common Stock issued in
connection with equipment leasing or bank financing transactions approved by the
Company's Board of Directors. The "Effective Price" of Additional Shares of
Common Stock shall mean the quotient determined by dividing the total number of
Additional Shares of Common Stock issued or sold, or deemed to have been issued
or sold by the Company under this Section 74, into the aggregate consideration
received, or deemed to have been received by the Company for such issue under
this Section 7.4, for such Additional Shares of Common Stock.
7.5 Notices of Record Date, Etc. In case:
7.5.1 the Company shall take a record of the holders of its Common Stock
(or other securities at the time receivable upon the exercise of the Warrant)
for the purpose of entitling them to receive any dividend (other than a cash
dividend at the same rate as the rate of the last cash dividend theretofore
paid) or other distribution, or any right to subscribe for, purchase or
otherwise acquire all shares of stock of any class or any other securities, or
to receive any other right; or
7.5.2 of any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, then, and in each such case, the Company shall mail
or cause to be mailed to each Holder a notice specifying, as the case may be,
(A) the date on which a 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, or (B) the date on which such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any, to be fixed, as to which the
holders of record of Common Stock (or such other securities at the time
receivable upon the exercise of this Warrant) shall be entitled to exchange
their shares of Common Stock (or such other securities) for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding-up. Such notice shall be
mailed at least twenty (20) days prior to the date therein specified, and this
Warrant may be exercised prior to said date during the term of the Warrant.
7.6 Threshold for Adjustments. Anything in this Section to the contrary
notwithstanding, the Company shall not be required to give effect to any
adjustment until the cumulative resulting adjustment in the Exercise Price
pursuant to this Section shall have required a change of the Exercise Price by
at least $0.01, but when the cumulative net effect of more than one adjustment
so determined shall be to change the Exercise Price by at least $0.01, such full
change in the Exercise Price shall thereupon be given effect. No adjustment
shall be made by reason of the issuance of shares upon conversion
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rights, stock issuance rights or similar rights currently outstanding or any
change in the number of treasury shares held by the Company.
Section 8. Cashless Conversion Rights.
8.1 Shares to be Issued. In lieu of exercise of any portion of this Warrant as
provided in Section 2 hereof, the Warrant (or any portion thereof) may, at the
election of the Holder, be converted into the nearest whole number of shares of
Common Stock equal to: (1) the product of (a) the number of Warrants to be so
converted, (b) the number of shares of Common Stock then issuable upon the
exercise of each Warrant and (c) the excess, if any, of (i) the Fair Market
Value (as determined in accordance with Section 4) per share with respect to the
date of conversion over (ii) the Exercise Price in effect on the business day
next preceding the date of conversion. divided by (2) the Fair Market Value (as
determined in accordance with Section 4) per share with respect to the date of
conversion.
8.2 Procedure. The conversion rights provided under this Section may be
exercised in whole or in part and at any time and from time to time while any
Warrants remain outstanding. In order to exercise the conversion privilege, the
Holder shall surrender to the Company, at its offices, this Warrant accompanied
by a duly completed Notice of Cashless Conversion in the form attached hereto as
Exhibit B. The Warrant (or so much thereof as shall have been surrendered for
conversion) shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Warrant for conversion in
accordance with the foregoing provisions. As promptly as practicable on or after
the conversion date, the Company shall issue and shall deliver to the Holder (i)
a certificate or certificates representing the number of shares of Common Stock
to which the Holder shall be entitled as a result of the conversion, and (ii) if
the Warrant is being converted in part only, a new certificate in principal
amount equal to the unconverted portion of the Warrant.
Section 9. Legend and Stop Transfer Orders. Unless the shares of Warrant Stock
have been registered under the Securities Act, upon exercise of any of this
Warrant and the issuance of any of the shares of Warrant Stock, the Company
shall instruct its transfer agent, if any, to enter stop transfer orders with
respect to such shares, and all certificates representing shares of Warrant
Stock shall bear on the face thereof substantially the following legend:
Neither this stock nor any shares of stock issuable upon conversion of
this stock, if applicable, have been registered under the Securities Act
of 1933. The Holder may not transfer this stock nor the shares issuable
upon conversion of this stock, if applicable, unless (i) there is an
effective registration covering the shares represented by this
certificate or such underlying shares, as the case may be, under the
Securities Act of 1933 and applicable state securities laws, (ii) the
Company first receives a letter from
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an attorney, acceptable to the board of directors or its agents, stating
that in the opinion of the attorney the proposed transfer is exempt from
registration under the Securities Act of 1933 and under all applicable
state securities laws, or (iii) the transfer is made pursuant to Rule
144 under the Securities Act of 1933.
Section 10. Notice. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered against receipt, if to the Holder, at
his/her address as shown on the books of the Company, and if to the Company, at
its principal office, 00000 Xxxxx Xxxxxx Xxxxx Xxxx, Xxxxx 000, Xx Xxxxx,
Xxxxxxxxxx 00000. Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof.
Section 11. Binding Effect. The provisions of this Warrant shall be binding upon
and inure to the benefit of (1) the parties hereto, (2) the successors and
assigns of the Company, (3) if the Holder is a corporation, partnership, or
other business entity, the successors and assignee of the Holder, and (4) if the
Holder is a natural person, the assignees, heirs, and personal representative of
the Holder.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by a duly
authorized officer and effective as of this 11th day of September, 2000.
AKKADIX CORPORATION, a California
corporation
By: /s/ XXXXXX X. CHATROO
-------------------------------------
Name: Xxxxxx X. Chatroo
-----------------------------------
Title: Exec. V.P. and General Counsel
----------------------------------
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EXHIBIT A
WARRANT EXERCISE FORM
To: Akkadix Corporation
The undersigned hereby irrevocably elects to exercise the within Warrant to the
extent of purchasing _____ shares of Series E Preferred Stock of Akkadix
Corporation and hereby makes payment of $_______ in payment therefor.
Dated:
------------
----------------------------
Name of Holder
By:
-------------------------
Signature of Holder
Address
---------------------
----------------------------
----------------------------
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EXHIBIT B
NOTICE OF CASHLESS CONVERSION
To: Akkadix Corporation
The undersigned hereby irrevocably elects to convert, pursuant to Section 8 of
the Warrant accompanying this is Notice of Conversion, _________ Warrants of the
total number of Warrants owned by the undersigned pursuant to the accompanying
Warrant into shares of the Series E Stock of Akkadix Corporation (the "Shares").
The number of Shares to be received by the undersigned shall be calculated in
accordance with the provisions of Section 8.1 of the accompanying Warrant.
Dated:
------------
----------------------------
Name of Holder
By:
-------------------------
Signature of Holder
Address
---------------------
----------------------------
----------------------------
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