Exhibit 10.7
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, TRANSFERRED, OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE COMPANY COUNSEL) REASONABLY
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933.
WARRANT AGREEMENT
To Purchase Shares of the Preferred Stock of
SCRIPTECH PHARMACEUTICALS, INC.
Dated as of January 17, 1994 (the "Effective Date")
WHEREAS, ScripTech Pharmaceuticals, Inc., a Delaware corporation (the
"Company") has entered into a Master Lease Agreement dated as of November 22,
1993, Equipment Schedule No. VL-1, and related Schedules (the "Leases") with
Comdisco, Inc., a Delaware corporation (the "Warrantholder"); and
WHEREAS, the Company desires to grant to Warrantholder, in consideration
for such Leases, the right to purchase shares of its Preferred Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and
delivering such Leases and in consideration of mutual covenants and agreements
contained herein, the Company and Warrantholder agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE PREFERRED STOCK.
The Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth, to
subscribe to and purchase, from the Company, 153,000 fully paid and
non-assessable shares of the Company's Series A Preferred Stock ("Preferred
Stock") at a purchase price of $1.00 per share (the "Exercise Price"). The
number and purchase price of such shares are subject to adjustment as provided
in Section 8 hereof.
2. TERM OF THE WARRANT AGREEMENT.
Except as otherwise provided for herein, the term of this Warrant
Agreement and the right to purchase Preferred Stock as granted herein shall
commence on the Effective Date and shall terminate on the later of (i) 5:00 PM
Eastern Standard Time on January 16, 2004 or (ii) five (5) years from the
closing of the sale and issuance of shares of Common Stock of the Company in the
Company's initial public offering, whichever is longer.
3. EXERCISE OF THE PURCHASE RIGHTS.
The purchase rights set forth In this Warrant Agreement are exercisable by
the Warrantholder, in whole or in part, at any time, or from time to time, prior
to the expiration of the term set forth in Section 2 above, by tendering to the
Company at its principal office a notice of exercise in the form attached hereto
as Exhibit I (the "Notice of Exercise"), duly completed and executed. Promptly
upon receipt of the Notice of Exercise and the payment of the purchase price in
accordance with the terms set forth below, and in no event later than twenty-one
(21) days thereafter, the Company shall issue to the Warrantholder a certificate
for the number of shares of Preferred Stock purchased and shall execute the
Notice of Exercise indicating the number of shares which remain subject to
future purchases, if any.
The Exercise Price may be paid at the Warrantholder's election either (i)
by cash or check, or (ii) by surrender of Warrants ("Net Issuance") as
determined below. If the Warrantholder elects the Net Issuance method, the
Company will issue Preferred Stock in accordance with the following formula:
X = Y(A-B)
------
A
Where: X = the number of shares of Preferred Stock to be issued to the
Warrantholder.
Y = the number of shares of Preferred Stock requested to be
exercised under this Warrant Agreement.
A = the fair market value of one (1) share of Common Stock.
B = the Exercise Price.
As used herein, current fair market value of Common Stock shall mean with
respect to each share of Common Stock:
(i) if the exercise is in connection with an initial public offering, and
if the Company's Registration Statement relating to such public offering
has been declared effective by the SEC, then the initial "Price to Public"
specified in the final prospectus with respect to the offering;
(ii) if this Warrant is exercised after, and not in connection with the
Company's initial public offering:
(a) if traded on a securities exchange or listed on NASDAQ, the fair
market value shall be deemed to be the average of the closing prices
over a twenty-one (21) day period ending three days before the day
the current fair market value of the securities is being determined;
or
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(b) if traded over-the-counter, the fair market value shall be
deemed to be the average of the closing bid and asked prices quoted
on the NASDAQ system (or similar system) over the twenty-one (21)
day period ending three days before the day the current fair market
value of the securities is being determined;
(iii) if at any time the Common Stock is not listed on any securities
exchange or quoted in the NASDAQ System or the over-the-counter market,
the current fair market value of Common Stock shall be the price per share
which the Company could obtain from a willing buyer (not a current
employee or director) for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined in good faith by its Board
of Directors, unless the Company shall become subject to a merger,
acquisition or other consolidation pursuant to which the Company is not
the surviving party, in which case the fair market value of Common Stock
shall be deemed to be the per share value received by the holders of the
Company's Preferred Stock on a common equivalent basis pursuant to such
merger or acquisition.
Upon partial exercise by either cash or Net Issuance, the Company shall
promptly issue an amended Warrant Agreement representing the remaining number of
shares purchasable hereunder. All other terms and conditions of such amended
Warrant Agreement shall be identical to those contained herein, including, but
not limited to the Effective Date hereof.
4. RESERVATION OF SHARES.
(a) Authorization and Reservation of Shares. During the term of this
Warrant Agreement, the Company will at all times have authorized and reserved a
sufficient number of shares of its Preferred Stock to provide for the exercise
of the rights to purchase Preferred Stock as provided for herein.
(b) Registration or Listing.If any shares of Preferred Stock required to
be reserved hereunder require registration with or approval of any governmental
authority under any Federal or State law (other than any registration under the
1933 Act, as then in effect, or any similar Federal statute then enforced, or
any state securities law, required by reason of any transfer involved in such
conversion), or listing on any domestic securities exchange, before such shares
may be issued upon conversion, the Company will, at its expense and as
expeditiously as possible, use its best efforts to cause such shares to be duly
registered, listed or approved for listing on such domestic securities exchange,
as the case may be.
5. NO FRACTIONAL SHARES OR SCRIP.
No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of the Warrant, but in lieu of such fractional shares
the Company shall make a cash payment therefor upon the basis of the Exercise
Price then in effect.
6. NO RIGHTS AS SHAREHOLDER.
This Warrant Agreement does not entitle the Warrantholder to any voting
rights or other rights as a shareholder of the Company prior to the exercise of
the Warrant.
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7. WARRANTHOLDER REGISTRY.
The Company shall maintain a registry showing the name and address of the
registered holder of this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
The purchase price per share and the number of shares of Preferred Stock
purchasable hereunder are subject to adjustment, as follows:
(a) Merger and Sale of Assets. If at any time there shall be a capital
reorganization of the shares of the Company's stock (other than a combination,
reclassification, exchange or subdivision of shares otherwise provided for
herein), or a merger or consolidation of the Company with or into another
corporation when the Company is not the surviving corporation, or the sale of
all or substantially all of the Company's properties and assets to any other
person (hereinafter referred to collectively as a "Merger Event"), then, as a
part of such Merger Event, lawful provision shall be made so that the
Warrantholder shall thereafter be entitled to receive, upon exercise of the
Warrant, the number of shares of preferred stock or other securities of the
successor corporation resulting from such Merger Event, equivalent to that which
would have been issuable if Warrantholder had exercised this Warrant immediately
prior to the Merger Event. In any such case, appropriate adjustment (as
determined in good faith by the Company's Board of Directors) shall be made in
the application of the provisions of this Warrant Agreement with respect to the
rights and interest of the Warrantholder after the Merger Event to the end that
the provisions of this Warrant Agreement (including adjustments of the Exercise
Price and number of shares of Preferred Stock purchasable) shall be applicable
to the greatest extent possible.
(b) Reclassification of Shares. If the Company at any time shall, by
combination, reclassification, exchange of securities or otherwise (other than
as provided in Section 8(c)), change any of the securities as to which purchase
rights under this Warrant Agreement exist into the same or a different number of
securities of any other class or classes, this Warrant Agreement shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
Agreement immediately prior to such combination, reclassification, exchange or
other change.
(c) Subdivision or Combination of Shares. If the Company at any time shall
combine or subdivide its Preferred Stock, the Exercise Price shall be
proportionately decreased in the case of a subdivision, or proportionately
increased in the case of a combination.
(d) Stock Dividends. If the Company at any time shall pay a dividend
payable in, or make any other distribution (except any distribution specifically
provided for in the foregoing subsections (a) or (b)) of the Company's stock,
then the Exercise Price shall be adjusted, from and after the record date of
such dividend or distribution, to that price determined by multiplying the
Exercise Price in effect immediately prior to such record date by a fraction (i)
the numerator of which shall be the total number of all shares of the Company's
stock outstanding immediately prior to such dividend or distribution, and (ii)
the denominator of which shall be the total number of all shares of the
Company's stock outstanding immediately after such dividend or distribution.
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The Warrantholder shall thereafter be entitled to purchase, at the Exercise
Price resulting from such adjustment, the number of shares of Preferred Stock
(calculated to the nearest whole share) obtained by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of shares of
Preferred Stock issuable upon the exercise hereof immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
(e) Antidilution Rights. The antidilution rights applicable to the
Preferred Stock purchasable hereunder are as set forth in the Company's
Certificate of Incorporation, as amended through the Effective Date, a true and
complete copy of which has been provided to Warrantholder. The Company shall
promptly provide the Warrantholder with any restatement, amendment, modification
or waiver of the Charter. The Company shall provide Warrantholder with prior
written notice of any issuance of its stock or other equity security to occur
after the Effective Date of this Warrant Agreement, as may be required pursuant
to Article Forth, Section (b)(5)(c)(vi) of the Company's Certificate of
Incorporation.
(f) Notice of Adjustments. If: (i) the Company shall declare any dividend
or distribution upon its stock, whether in cash, property, stock or other
securities; (ii) the Company shall offer for subscription prorata to the holders
of any class of its Preferred or other convertible stock any additional shares
of stock of any class or other rights; (iii) there shall be any Merger Event; or
(iv) there shall be any voluntary or involuntary dissolution, liquidation or
winding up of the Company; then, in connection with each such event, the Company
shall send to the Warrantholder: (A) at least twenty (20) days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for such dividend, distribution, subscription rights (specifying
the date on which the holders of Preferred Stock shall be entitled thereto) or
for determining rights to vote in respect of such Merger Event, dissolution,
liquidation or winding up; and (B) in the case of any such Merger Event,
dissolution, liquidation or winding up, at least twenty (20) days' prior written
notice of the date when the same shall take place (and specifying the date on
which the holders of Preferred Stock shall be entitled to exchange their
Preferred Stock for securities or other property deliverable upon such Merger
Event, dissolution, liquidation or winding up). In the case of a public
offering, the Company shall give Warrantholder at least twenty (20) days written
notice prior to the effective date thereof.
Each such written notice shall set forth, in reasonable detail, (i)
the applicable event, (ii) the amount of the adjustment, if any, (iii) the
method by which such adjustment was calculated, (iv) the Exercise Price, and (v)
the number of shares subject to purchase hereunder after giving effect to such
adjustment, and shall be given by first class mail, postage prepaid, addressed
to the Warrantholder, at the address as shown on the books of the Company.
(g) Timely Notice. Failure to timely provide such notice required by
subsection (g) above shall entitle Warrantholder to retain the benefit of the
applicable notice period notwithstanding anything to the contrary contained in
any insufficient notice received by Warrantholder. The notice period shall begin
on the date the notice is deemed to be effectively given pursuant to Section
12(e).
-5-
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
Except as set forth on Schedule A attached hereto, the Company hereby
represents and warrants as follows:
(a) Reservation of Preferred Stock. The Preferred Stock issuable upon
exercise of the Warrantholder's rights has been duly and validly reserved and,
when issued in accordance with the provisions of this Warrant Agreement, will be
validly issued, fully paid and non-assessable. The Company has made available to
the Warrantholder true, correct and complete copies of its Charter and Bylaws,
as amended. The issuance of certificates for shares of Preferred Stock upon
exercise of the Warrant Agreement shall be made without charge to the
Warrantholder for any issuance tax in respect thereof, or other cost incurred by
the Company in connection with such exercise and the related issuance of shares
of Preferred Stock. The Company shall not be required to pay any tax which may
be payable in respect of any transfer involved and the issuance and delivery of
any certificate in a name other than that of the Warrantholder.
(b) Due Authority. The execution and delivery by the Company of this
Warrant Agreement and the performance of all obligations of the Company
hereunder, including the issuance to Warrantholder of the right to acquire the
shares of Preferred Stock, have been duly authorized by all necessary corporate
action on the part of the Company, and the Leases and this Warrant Agreement are
not inconsistent with the Company's Charter or Bylaws, do not contravene in any
material regard any law or governmental rule, regulation or order applicable to
it, do not and will not contravene any provision of, or constitute a default
under, any material Indenture, mortgage, contract or other instrument to which
it is a party or by which it is bound, and the Leases and this Warrant Agreement
constitute legal, valid and binding agreements of the Company, enforceable in
accordance with their respective terms.
(c) Consents and Approvals. No consent or approval of, giving of notice
to, registration with, or taking of any other action in respect of any state,
Federal or other governmental authority or agency is required with respect to
the execution, delivery and performance by the Company of its obligations under
this Warrant Agreement.
(d) Issued Securities. All issued and outstanding shares of Common Stock,
Preferred Stock or any other securities of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. All outstanding shares
of Common Stock, Preferred Stock and any other securities were issued in full
compliance with all Federal and state securities laws. In addition:
(i) The authorized capital of the Company consists of (A) 15,000,000
shares of Common Stock, of which 524,000 shares are issued and outstanding, and
(B) 6,400,000 shares of preferred stock, of which 6,203,325 shares are issued
and outstanding and are convertible into 6,203,325 shares of Common Stock as of
the Effective Date.
(ii) The Company has reserved (A) 3,200,000 shares of Common Stock
for issuance under its Stock Option Plan, under which options and right to
purchase an aggregate of 1,960,500 shares of Common Stock are outstanding. There
are no other options, warrants, conversion privileges or other rights presently
outstanding to purchase or otherwise acquire any
-6-
authorized but unissued shares of the Company's capital stock or other
securities of the Company, except as set forth on Schedule A.
(iii) Under the Company's Certificate of Incorporation, no
shareholder of the Company has preemptive rights to purchase new issuances of
the Company's capital stock.
(e) Insurance. The Company has in full force and effect insurance
policies, with extended coverage, insuring the Company and its property and
business against such losses and risks, and in such amounts, as are customary
for corporations engaged in a similar business and similarly situated and as
otherwise may be required pursuant to the terms of any other contract or
agreement.
(f) Other Commitments to Register Securities. The Company is not, pursuant
to the terms of any other agreement currently in existence, under any obligation
to register under the 1933 Act any of its presently outstanding securities or
any of its securities which may hereafter be issued, except as set forth on
Schedule A.
(g) Exempt Transaction. Subject to the accuracy of the Warrantholder's
representations in Section 10 hereof, the issuance of the Preferred Stock upon
exercise of this Warrant will constitute a transaction exempt from (i) the
registration requirements of Section 5 of the 1933 Act, in reliance upon Section
4(2) thereof, and (ii) the registration requirements of the Illinois Corporate
Securities Law of 1953, in reliance upon Section 4 [5/4] thereof.
(h) Compliance with Rule 144. At the written request of the Warrantholder,
who proposes to sell Preferred Stock issuable upon the exercise of the Warrant
in compliance with Rule 144 promulgated by the Securities and Exchange
Commission, the Company shall furnish to the Warrantholder, within ten (10) days
after receipt of such request, a written statement confirming the Company's
compliance with the filing requirements of the Securities and Exchange
Commission as set forth in such Rule, as such Rule may be amended from time to
time.
10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
This Warrant Agreement has been entered into by the Company in reliance
upon the following representations and covenants of the Warrantholder:
(a) Investment Purpose. This Warrant and the Preferred Stock issuable upon
exercise of the Warrantholder's rights contained herein are being and will be
acquired for investment and not with a view to the sale or distribution of any
part thereof, and the Warrantholder has no present intention of selling or
engaging in any public distribution of the same.
(b) The Warrantholder understands (i) that neither this Warrant nor the
Preferred Stock issuable upon exercise of this Warrant is being registered under
the 1933 Act or qualified under applicable state securities laws in reliance
upon exemptions therefrom, and (ii) that the Company's reliance on such
exemption is predicated on the representations set forth in this Section 10.
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(c) Disposition of Warrantholder's Rights. In no event will the
Warrantholder make a disposition this Warrant or of any of its rights to acquire
Preferred Stock or Preferred Stock issuable upon exercise of such rights unless
and until (i) it shall have notified the Company of the proposed disposition,
and (ii) if requested by the Company, it shall have furnished the Company with
an opinion of counsel (which counsel may either be inside or outside counsel to
the Warrantholder) satisfactory to the Company and its counsel to the effect
that (A) appropriate action necessary for compliance with the 1933 Act has been
taken, or (B) an exemption from the registration requirements of the 1933 Act is
available. Notwithstanding the foregoing, the restrictions imposed upon the
transferability of this Warrant or of any of its rights to acquire Preferred
Stock or Preferred Stock issuable on the exercise of such rights do not apply to
transfers from the beneficial owner of any of the aforementioned securities to
its nominee or from such nominee to its beneficial owner, and shall terminate as
to any particular share of Preferred Stock when (1) such security shall have
been effectively registered under the 1933 Act and sold by the holder thereof in
accordance with such registration or (2) such security shall have been sold
without registration in compliance with Rule 144 under the 1933 Act, or (3) a
letter shall have been issued to the Warrantholder at its request by the staff
of the Securities and Exchange Commission or a ruling shall have been issued to
the Warrantholder at its request by such Commission stating that no action shall
be recommended by such staff or taken by such Commission, as the case may be, if
such security is transferred without registration under the 1933 Act in
accordance with the conditions set forth in such letter or ruling and such
letter or ruling specifies that no subsequent restrictions on transfer are
required. Whenever the restrictions imposed hereunder shall terminate, as
hereinabove provided, the Warrantholder or holder of a share of Preferred Stock
then outstanding as to which such restrictions have terminated shall be entitled
to receive from the Company, without expense to such holder, one or more new
certificates for the Warrant or for such shares of Preferred Stock not bearing
any restrictive legend.
(d) Financial Risk. The Warrantholder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of its investment, and has the ability to bear the economic risks of its
investment.
(e) Risk of No Registration. The Warrantholder understands that if the
Company does not register with the Securities and Exchange Commission pursuant
to Section 12 of the 1933 Act, or file reports pursuant to Section 15(d), of the
Securities Exchange Act of 1934 (the "1934 Act"), or if a registration statement
covering the securities under the 1933 Act is not in effect when it desires to
sell (i) the rights to purchase Preferred Stock pursuant to this Warrant
Agreement, or (ii) the Preferred Stock issuable upon exercise of the right to
purchase, it may be required to hold such securities for an indefinite period.
The Warrantholder also understands that any sale of its rights of the
Warrantholder to purchase Preferred Stock or Preferred Stock which might be made
by it in reliance upon Rule 144 under the 1933 Act may be made only in
accordance with the terms and conditions of that Rule.
11. TRANSFERS.
Subject to the terms and conditions contained in Section 10 hereof and
applicable federal and state securities laws, this Warrant Agreement and all
rights hereunder are transferable in whole or in part by the Warrantholder and
any successor transferee, provided, however, in no
-8-
event shall the number of transfers of the rights and interests in all of the
Warrants exceed three (3) transfers. The transfer shall be recorded on the books
of the Company upon receipt by the Company of a notice of transfer in the form
attached hereto as Exhibit II (the "Transfer Notice"), at its principal offices
and the payment to the Company of all transfer taxes and other governmental
charges imposed on such transfer.
12. MISCELLANEOUS.
(a) The provisions of this Warrant Agreement shall be construed and shall
be given effect in all respects as if it had been executed and delivered by the
Company on the date hereof. This Warrant Agreement shall be binding upon any
successors or assigns of the Company.
(b) Attorneys' Fees. In any litigation, arbitration or court proceeding
between the Company and the Warrantholder relating hereto, the prevailing party
shall be entitled to attorneys' fees and expenses and all costs of proceedings
incurred in enforcing this Warrant Agreement.
(c) Governing Law. This Warrant Agreement shall be governed by and
construed for all purposes under and in accordance with the laws of the State of
Delaware.
(d) Counterparts. This Warrant Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery, facsimile
transmission (provided that the original is sent by personal delivery or mail as
hereinafter set forth) or seven (7) days after deposit in the United States
mail, by registered or certified mail, addressed (i) to the Warrantholder at
0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, attention: Xxxxx Xxxx, Venture
Leasing Director, cc: Legal Department, (and/or, if by facsimile, (708)
518-5465) and (ii) to the Company at Xxxxxx Diabetes Center, Xxx Xxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, (and/or if by facsimile, (000) 000-0000) or at such
other address as any such party may subsequently designate by written notice to
the other party.
(f) In the event of any default hereunder, the non-defaulting party may
proceed to protect and enforce its rights either by suit in equity and/or by
action at law, including but not limited to an action for damages as a result of
any such default, and/or an action for specific performance for any default
where Warrantholder will not have an adequate remedy at law and where damages
will not be readily ascertainable.
(g) No Impairment of Rights. The Company will not, by amendment of its
Charter or through any other means, 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
actions as may be necessary or appropriate in order to protect the rights of the
Warrantholder against impairment.
-9-
(h) Survival. The representations, warranties, covenants and conditions of
the respective parties contained herein or made pursuant to this Warrant
Agreement shall survive the execution and delivery of this Warrant Agreement.
(i) Severability. In the event any one or more of the provisions of this
Warrant Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Warrant Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable valid, legal and enforceable provision, which
comes closest to the intention of the parties underlying the invalid, illegal or
unenforceable provision.
(j) Amendments. Any provision of this Warrant Agreement may be amended by
a written instrument signed by the Company and by the Warrantholder.
(k) Additional Documents. The Company, upon execution of this Warrant
Agreement, shall provide the Warrantholder with an officer's certificate with
respect to the representations, warranties and covenants set forth in
subparagraphs (a) through (d), (f) and (g) of Section 9 above. If the purchase
price for the Leases referenced in the preamble of this Warrant Agreement
exceeds $1,000,000.00, the Company will also provide Warrantholder with an
opinion from the Company's counsel in a form mutually acceptable to
Warrantholder and such counsel. The Company shall also supply such other
documents as the Warrantholder may from time to time reasonably request.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be executed by its officers thereunto duly authorized as of the Effective
Date.
Company: SCRIPTECH PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Title: Secretary
--------------------------
Warrantholder: COMDISCO, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------
Title: President, Venture Lease Division
---------------------------------
1/28/94
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EXHIBIT I
Notice of Exercise
To: _______________________
(1) The undersigned Warrantholder hereby elects to purchase ______
shares of the Preferred Stock of SCRIPTECH PHARMACEUTICALS, INC.
pursuant to the terms of the Warrant Agreement dated the _____ day
of _____________, 19__ (the "Warrant Agreement") between SCRIPTECH
PHARMACEUTICALS, INC. and the Warrantholder, and tenders herewith
payment of the purchase price for such shares in full, together with
all applicable transfer taxes, if any.
(2) In exercising its rights to purchase the Preferred Stock of
SCRIPTECH PHARMACEUTICALS, INC., the undersigned hereby confirms and
acknowledges the investment representations and warranties made in
Section 10 of the Warrant Agreement.
(3) Please issue a certificate or certificates representing said shares
of Preferred Stock in the name of the undersigned or in such other
name as is specified below.
--------------------------------------
(Name)
--------------------------------------
(Address)
Warrantholder: COMDISCO, INC.
By:
--------------------------------
Title:
--------------------------------
Date:
--------------------------------
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ACKNOWLEDGEMENT OF EXERCISE
The undersigned ________________________________, hereby acknowledge
receipt of the "Notice of Exercise" from COMDISCO, INC., to purchase ____ shares
of the Preferred Stock of SCRIPTECH PHARMACEUTICALS, INC., pursuant to the terms
of the Warrant Agreement, and further acknowledges that ______ shares remain
subject to purchase under the terms of the Warrant Agreement.
Company:
By:
----------------------------------
Title:
----------------------------------
Date:
--------------------------------
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EXHIBIT II
Transfer Notice
(To transfer or assign the foregoing Warrant Agreement execute this form
and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant Agreement and all rights
evidenced thereby are hereby transferred and assigned to________________________
________________________________________________________________________________
____________________________________________
(Please Print)
whose address is
________________________________________________________________________________
________________________________________________________________________________
___________________
Dated_____________________________________________
Holder's Signature________________________________
Holder's Address__________________________________
Signature Guaranteed:_____________________________
NOTE: The signature to this Transfer Notice must correspond with
the name as it appears on the face of the Warrant Agreement,
without alteration or enlargement or any change whatever.
Officers of corporations and those acting in a fiduciary or
other representative capacity should file proper evidence of
authority to assign the foregoing Warrant Agreement.
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SCHEDULE A
Exceptions to Representations and Warranties
1. Exceptions to Xxxxxxx 0, xxxxxxxxx (x), xxxxxxxxxxxx (xx):
Each of the following persons has been granted an option or other right to
purchase the number of shares of Common Stock stated opposite such
person's name:
================================================================================
Name Number of Options or Shares
--------------------------------------------------------------------------------
Xx. Xxxxxx Xxxxxxx 1,500
--------------------------------------------------------------------------------
Xx. Xxxxxxx Xxxxxx 1,500
--------------------------------------------------------------------------------
Xx. Xxxxxxxx Xxxxx-Rhadfi 1,500
--------------------------------------------------------------------------------
Xx. Xxxx X. Xxxxxxxxx 5,000
--------------------------------------------------------------------------------
Xx. Xxxxx X. Xxxxxx 35,000
--------------------------------------------------------------------------------
Xx. Xxxxxx Xxx 5,000
--------------------------------------------------------------------------------
Xx. Xxxxx Xxxxxx 62,000
--------------------------------------------------------------------------------
Xx. Xxxxxxx XxXxxxxxx 2,000
--------------------------------------------------------------------------------
Xx. Xxxxxx F.X. XxXxxxx 200,000
--------------------------------------------------------------------------------
Xx. Xxxxxx Xxxxxx 35,000
--------------------------------------------------------------------------------
Xx. Xxxxx X. Xxxxxx 5,000
--------------------------------------------------------------------------------
Xx. Xxxxx Xxxxxx 5,000
--------------------------------------------------------------------------------
Xx. Xxxxxxx Xxxxxxxxx 1,500
--------------------------------------------------------------------------------
Xx. Xxxxxxx X. Xxxxx 750,000
--------------------------------------------------------------------------------
Xx. Xxxxx X. Xxx 750,000
--------------------------------------------------------------------------------
Xxxxxx Xxxxx 10,000
--------------------------------------------------------------------------------
Xxxxx Xxxxx 6,500
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx 1,000
--------------------------------------------------------------------------------
Xxxx X. Xxxxx 32,000
--------------------------------------------------------------------------------
Xxxxx Xxxxxx 15,000
--------------------------------------------------------------------------------
Xxxxxx X. Xxxxx 10,000
--------------------------------------------------------------------------------
Xxxxx Xxxxxx 15,000
--------------------------------------------------------------------------------
Dr. Xxxxx Xxxxxxxxxx 1,000
--------------------------------------------------------------------------------
Xx. Xxxxx Xxxx 10,000
--------------------------------------------------------------------------------
Total Number of Options or Shares: 1,960,500
================================================================================
-14-
2. Exception to Section 9, paragraph (f):
The Company has granted registration rights to certain investors In the
Company under Section 8 of a Stock Purchase Agreement dated September
16,1993 among the Company and the persons identified as Purchasers
therein. The Company has also granted registration rights to certain
stockholders pursuant to consulting and other similar agreements.
-15-
AMENDMENT NO. 1
TO
WARRANT AGREEMENT
To Purchase Shares of the Preferred Stock of
SCRIPTGEN PHARMACEUTICALS, INC.
This AMENDMENT NO. 1 ("Amendment") amends the WARRANT AGREEMENT, dated as
of January 17, 1994 (the "Agreement"), by and among Scriptgen Pharmaceuticals,
Inc. (the "Company") and Comdisco, Inc. (the "Warrantholder").
WHEREAS, the parties hereto desire to amend the Agreement;
NOW, THEREFORE, the Company and the Warrantholder do hereby agree to amend
the Agreement as follows:
1. There is hereby added to the end of Section 8(b) the following:
In the event that a mandatory conversion of shares of Preferred
Stock pursuant to the Company's Amended and Restated Certificate of
Incorporation occurs prior to the exercise of this Warrant, then all
references to "Series A Preferred Stock" and "Preferred Stock"
herein shall thereafter be deemed references to "Common Stock."
This Amendment may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute a single
instrument.
Company: SCRIPTGEN PHARMACEUTICALS, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Director of Operations
Date:
Warrantholder: COMDISCO, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: AVP / Venture
Date:
