EXHIBIT 10.6
This Warrant has not been registered under the Securities Act of 1933, as
amended, (the "Act") or any applicable state securities laws, and may not be
sold or transferred unless such sale or transfer is in accordance with the
registration requirements of such Act and applicable laws or some other
exemption from the registration requirements of such Act and applicable laws is
available with respect thereto.
SERIES D CONVERTIBLE PREFERRED STOCK PURCHASE WARRANT
Warrant No. PD Number of Shares
INHIBITEX, INC
Void after February , 2007
1. Issuance. This Warrant is issued to ___________ by Inhibitex,
Inc., a Delaware corporation (hereinafter with its successors called the
"Company").
2. Purchase Price; Number of Shares. Subject to the terms and
conditions hereinafter set forth, the registered holder of this Warrant (the
"Holder"), commencing on the date hereof, is entitled to purchase from the
Company at a price per share (the "Purchase Price") of $5.91, _________ fully
paid and nonassessable shares of Series D Convertible Preferred Stock, $.001 par
value, of the Company (the "Series D Preferred Stock"). Until such time as this
Warrant is exercised in full or expires, the Purchase Price and the securities
issuable upon exercise of this Warrant are subject to adjustment as hereinafter
provided.
3. Exercise of Warrant. This Warrant may be exercised by the
Holder upon the surrender of this Warrant, with the subscription form annexed
hereto duly executed, at the office of the Company, 0000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, XX 00000, or at such other office as the Company notifies the Holder
of in writing, together with payment of the Purchase Price (or the proportionate
part thereof if this Warrant is exercised in part) in the manner set forth in
Section 4 hereof (except in the case of an election under Section 5 hereof).
Upon such surrender of this Warrant, the Company will (a) issue a certificate or
certificates in the name of the Holder for the shares of the Series D Preferred
stock to which the Holder shall be entitled and (b) deliver to the Holder the
proportionate part thereof if this Warrant is exercised in part, pursuant to the
provisions of the Warrant.
4. Payment of Purchase Price. The Purchase Price may be paid (i)
in cash or by check, (ii) by the surrender by the Holder to the Company of any
promissory notes or other obligations issued by the Company, with all such notes
and obligations so surrendered being credited against the Purchase Price in an
amount equal to the principal amount thereof plus accrued interest to the date
of surrender, (iii) through delivery by the Holder to the Company of other
securities issued by the Company, with such securities being credited against
the Purchase Price in an amount equal to the fair market value thereof, as
determined in good faith by the Board of Directors of the Company (the "Board"),
or (iv) by any combination of the foregoing. The Board shall promptly respond in
writing to an inquiry by the Holder
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as to the fair market value of any securities the Holder may wish to deliver to
the Company pursuant to clause (iii) above.
5. Net Issue Election. The Holder may elect to receive, without
the payment by the Holder of any additional consideration, shares equal to the
value of this Warrant or any portion hereof by the surrender of this Warrant or
such portion to the Company, with the net issue election notice annexed hereto
duly executed, at the office of the Company. Thereupon, the Company shall issue
to the Holder such number of fully paid and nonassessable shares of Series D
Preferred Stock as is computed using the following formula:
X = Y (A-B)
-------
A
where
X = the number of shares to be issued to the Holder
pursuant to this Section 4.
Y = the number of shares covered by this Warrant in respect of
which the net issue election is made pursuant to this Section
5.
A = the fair market value of one share of Series D Preferred
Stock, as determined in good faith by the Board, as at the
time the net issue election is made pursuant to this Section
5.
B = the Purchase Price in effect under this Warrant at the
time the net issue election is made pursuant to this Section
5.
The Board shall promptly respond in writing to an inquiry by the Holder as to
the fair market value of one share of Series D Preferred Stock.
6. Partial Exercise. This Warrant may be exercised in whole or in
part, and the Holder shall be entitled to receive a new warrant, which shall be
dated as of the date of this Warrant, covering the number of shares in respect
of which this Warrant shall not have been exercised.
7. Issuance Date. The person or persons in whose name or names
any certificate representing shares of Series D Preferred Stock is issued
hereunder shall be deemed to have become the holder of record of the shares
represented thereby as at the close of business on the date this Warrant is
exercised with respect to such shares, whether or not the transfer books of the
Company shall be closed.
8. Expiration Date; Automatic Exercise. This Warrant shall expire
at the close of business on February , 2007, or effective upon the closing of
a firm commitment underwritten public offering of shares of Common Stock in
which (i) the aggregate price paid for such shares by the public shall be at
least $35,000,000 and (ii) the price paid by the public for such shares shall be
at least $8.00 per share (adjusted to reflect any subdivision, combination or
stock dividend of or with respect to the Common Stock), whichever is earlier,
and shall be void thereafter. Notwithstanding the foregoing, this Warrant shall
automatically be deemed to be exercised in full pursuant to the provisions of
Section 5 hereof, without any further action on behalf of the Holder,
immediately prior to the time this Warrant would otherwise expire pursuant to
the preceding sentence.
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9. Reserved Shares; Valid Issuance. The Company covenants that it
will at all times from and after the date hereof reserve and keep available such
number of its authorized shares of Series D Preferred Stock and Common Stock,
$.001 par value (the "Common Stock"), free from all preemptive or similar rights
therein, as will be sufficient to permit, respectively, the exercise of this
Warrant in full and the conversion into shares of Common Stock of all shares of
Series D Preferred Stock receivable upon such exercise. The Company further
covenants that such shares as may be issued pursuant to such exercise and
conversion will, upon issuance, be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to the
issuance thereof.
10. Stock Dividends. If after the Original Issue Date (as defined
in Section 15 hereof) the Company shall subdivide the Series D Preferred Stock,
by split-up or otherwise, or combine the Series D Preferred Stock, or issue
additional shares of Series D Preferred Stock in payment of a stock dividend on
the Series D Preferred Stock, the number of shares issuable on the exercise of
this Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination, and the Purchase Price shall forthwith be proportionately decreased
in the case of a subdivision or stock dividend, or proportionately increased in
the case of a combination.
11. Mergers and Reclassifications. If after the Original Issue
Date there shall be any reclassification, capital reorganization or change of
the Series D Preferred Stock (other than as a result of a subdivision,
combination or stock dividend provided for in Section 10 hereof), or any
consolidation of the Company with, or merger of the Company into, another
corporation or other business organization (other than a consolidation or merger
in which the Company is the continuing corporation and which does not result in
any reclassification or change of the outstanding Series D Preferred Stock), or
any sale or conveyance to another corporation or other business organization of
all or substantially all of the assets of the Company, then, as a condition of
such reclassification, reorganization, change, consolidation, merger, sale or
conveyance, lawful provisions shall be made, and duly executed documents
evidencing the same from the Company or its successor shall be delivered to the
Holder, so that the Holder shall thereafter have the right to purchase, at a
total price not to exceed that payable upon the exercise of this Warrant in
full, the kind and amount of shares of stock and other securities and property
receivable upon such reclassification, reorganization, change, consolidation,
merger, sale or conveyance by a holder of the number of shares of Series D
Preferred Stock which might have been purchased by the Holder immediately prior
to such reclassification, reorganization, change, consolidation, merger, sale or
conveyance (or, if there are no holders of Series D Preferred Stock at such
time, by a holder of the number of shares of Common Stock which might have been
acquired by the Holder immediately prior to such reclassification,
reorganization, change, consolidation, merger, sale or conveyance upon the
exercise of this Warrant in full and the conversion into shares of Common Stock
of all shares of Series D Preferred Stock receivable upon such exercise), and in
any such case appropriate provisions shall be made with respect to the rights
and interest of the Holder to the end that the provisions hereof (including
without limitation, provisions for the adjustment of the Purchase Price and the
number of shares issuable hereunder) shall thereafter be applicable in relation
to any shares of stock or other securities and property thereafter deliverable
upon exercise hereof.
12. Fractional Shares. In no event shall any fractional share of
Series D Preferred Stock be issued upon any exercise of this Warrant. If, upon
exercise of this Warrant as an entirety, the Holder would, except as provided in
this Section 12, be entitled to receive a fractional share of Series D Preferred
Stock, then the Company shall issue the next higher number of full shares of
Series D Preferred Stock, issuing a full share with respect to such fractional
share.
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13. Certificate of Adjustment. Whenever the Purchase Price is
adjusted, as herein provided, the Company shall promptly deliver to the Holder a
certificate of the Company's Chief Financial Officer setting forth the Purchase
Price after such adjustment and setting forth a brief statement of the facts
requiring such adjustment.
14. Notices of Record Date, Etc. In the event of:
(a) any taking by the Company of a record of the holders of
any class of securities for the purpose of determining the holders thereof who
are entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right,
(b) any reclassification of the capital stock of the
Company, capital reorganization of the Company, consolidation or merger
involving the Company, or sale or conveyance of all or substantially all of its
assets, or
(c) any voluntary or involuntary dissolution, liquidation
or winding-up of the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any is to be fixed, as of which the holders of record in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken.
15. Other Warrants. This Warrant is one of a series of warrants
(collectively, the "Warrants") that were originally issued by the Company on
February , 2002 (the "Original Issue Date") pursuant to a Series D Preferred
Stock and Warrant Purchase Agreement dated as of the Original Issue Date by and
among the Company and the other parties thereto.
16. Amendment. The terms of this Warrant may be amended, modified
or waived only with the written consent of the Company and the holders of
Warrants representing at least two-thirds of the number of shares of Series D
Preferred Stock then issuable upon the exercise of the Warrants. No such
amendment, modification or waiver shall be effective as to this Warrant unless
the terms of such amendment, modification or waiver shall apply with the same
force and effect to all of the other Warrants then outstanding.
17. Warrant Register; Transfers, Etc.
A. The Company will maintain a register containing the
names and addresses of the registered holders of the Warrants. The Holder may
change its address as shown on the warrant register by written notice to the
Company requesting such change. Any notice or written communication required or
permitted to be given to the Holder may be given by certified mail or delivered
to the Holder at its address as shown on the warrant register.
B. Subject to compliance with applicable federal and
state securities laws, this Warrant may be transferred by the Holder with
respect to any or all of the shares purchasable hereunder. Upon surrender of
this Warrant to the Company, together with the assignment hereof properly
endorsed,
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for transfer of this Warrant as an entirety by the Holder, the Company shall
issue a new warrant of the same denomination to the assignee. Upon surrender of
this Warrant to the Company, together with the assignment hereof properly
endorsed, by the Holder for transfer with respect to a portion of the shares of
Series D Preferred Stock purchasable hereunder, the Company shall issue a new
warrant to the assignee, in such denomination as shall be requested by the
Holder hereof, and shall issue to such Holder a new warrant covering the number
of shares in respect of which this Warrant shall not have been transferred.
C. In case this Warrant shall be mutilated, lost, stolen
or destroyed, the Company shall issue a new warrant of like tenor and
denomination and deliver the same (i) in exchange and substitution for and upon
surrender and cancellation of any mutilated Warrant, or (ii) in lieu of any
Warrant lost, stolen or destroyed, upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft or destruction of such Warrant
(including a reasonably detailed affidavit with respect to the circumstances of
any loss, theft or destruction) and of indemnity reasonably satisfactory to the
Company, provided, however, that so long as Investor is the registered holder of
this Warrant, no indemnity shall be required other than its written agreement to
indemnify the Company against any loss arising from the issuance of such new
warrant.
18. No Impairment. The Company will not, by amendment or
restatement of its Sixth Amended and Restated Certificate of Incorporation or
through any reclassification, capital reorganization, consolidation, merger,
sale or conveyance of assets, dissolution, liquidation, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights of
the Holder.
19. Governing Law. The provisions and terms of this Warrant shall
be governed by and construed in accordance with the internal laws of the State
of Delaware.
20. Successors and Assigns. This Warrant shall be binding upon the
Company's successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
21. Business Days. If the last or appointed day for the taking of
any action required or the expiration of any right granted herein shall be a
Saturday or Sunday or a legal holiday in Delaware, then such action may be taken
or right may be exercised on the next succeeding day which is not a Saturday or
Sunday or such a legal holiday.
22. No Rights as Shareholder. Except as otherwise provided herein
or in the Third Amended and Restated Master Rights Agreement dated as of the
date hereof between the Company and the parties listed thereto, as amended from
time to time, this Warrant does not confer upon the Holder any right to vote or
to consent to or receive notice as a shareholder of the Company, as such, in
respect of any matters whatsoever, or any other rights or liabilities as a
shareholder, prior to the exercise hereof.
Dated: February__, 2002 INHIBITEX, INC.
________________________________
(Corporate Seal) By:_____________________________
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Attest: Title:__________________________
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Subscription
To:____________________ Date:_________________________
The undersigned hereby subscribes for __________ shares of Series D
Preferred Stock covered by this Warrant. The certificate(s) for such shares
shall be issued in the name of the undersigned or as otherwise indicated below:
__________________________________
Signature
__________________________________
Name for Registration
__________________________________
Mailing Address
Net Issue Election Notice
To:____________________ Date:_________________________
The undersigned hereby elects under Section 5 to surrender the right to
purchase _______ shares of Series D Preferred Stock pursuant to this Warrant.
The certificate(s) for the shares issuable upon such net issue election shall be
issued in the name of the undersigned or as otherwise indicated below.
__________________________________
Signature
__________________________________
Name for Registration
__________________________________
Mailing Address
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Assignment
For value received ____________________________ hereby sells,
assigns and transfers unto ______________________________________
__________________________________________________________________________
Please print or typewrite name and address of Assignee
__________________________________________________________________________
the within Warrant, and does hereby irrevocably constitute and appoint
_______________________ its attorney to transfer the within Warrant on the books
of the within named Company with full power of substitution on the premises.
Dated:_______________________
_____________________________
In the Presence of:
_____________________________
