WARRANT AGREEMENT
THIS AGREEMENT, is dated as of this ___day of 2008, by and between the PolyMedix,
Inc., a Delaware corporation (the “Company”) and American Stock Transfer & Trust Company, LLC (the
“Transfer Agent”).
WHEREAS, the Company shall issue, in connection with its offering (the “Offering”) of units
pursuant to a registration statement on Form S-1, as amended (Commission No. 333-151084) filed with
the U.S. Securities and Exchange Commission, Series A Warrants (each a “Warrant” and collectively,
the “Warrants”) to purchase one share of Common Stock, par value $0.001 per share of the Company
(“Common Stock”) for every share of Common Stock purchased in the Offering. Such units shall
separate upon a closing of the Offering into up to an aggregate of [ ] shares of Common
Stock and up to an aggregate of [ ] Warrants.
WHEREAS, the Company desires to appoint the Transfer Agent to act on its behalf in connection
with the (i) issuance, transfer and exchange of the certificates representing the Warrants (the
“Warrant Certificates”), (ii) the exercise of the Warrants by the holders thereof (together with
any registered successors or assigns, the “Holders”) and (iii) the adjustment of the Warrants in
certain events as contained herein;
1. CERTAIN DEFINITIONS. As used herein, the following terms shall have the following
respective meanings:
(a) “Exercise Period” shall mean the period commencing with the date hereof and ending on
, 2013, unless sooner terminated as provided below.
(b) “Exercise Price” shall mean $ per share, subject to adjustment pursuant to Section
8 below.
(c) “Exercise Shares” shall mean the shares of Common Stock issuable upon exercise of this
Warrant.
(d) “Trading Day” shall mean (i) any day on which the Common Stock is listed or quoted on its
primary trading market, (ii) if the Common Stock is not then listed or quoted and traded on any
eligible market (meaning any of the New York Stock Exchange, American Stock Exchange (“AMEX”) or
The NASDAQ Global Market), then a day on which trading occurs on the OTC Bulletin Board (or any
successor thereto), or (iii) if trading does not occur on the OTC Bulletin Board (or any successor
thereto), any business day.
2. APPOINTMENT OF TRANSFER AGENT. The Company hereby appoints the Transfer Agent as
its agent to issue the Warrant Certificates, as set forth herein at the usual and customary rates
under the agreements between the Company and the Transfer Agent, subject to resignation or
replacement as provided herein. The Transfer Agent agrees to accept such appointment, subject to
the terms and conditions as set forth herein and to issue, transfer and exchange the Warrant
Certificates pursuant to the terms as provided for herein and to issue the certificates
representing the appropriate number of shares of Common Stock (or other consideration) upon
exercise of the Warrants. The Company agrees to issue and honor the
Warrants on the terms and conditions as herein set forth and to issue its Common Stock (or
other securities) upon notice from the Transfer Agent of the proper exercise of any Warrant. The
Transfer Agent is hereby empowered but not obligated to enforce any rights of the Holders for the
benefit of any Holders, subject to the terms and conditions contained herein.
3. ISSUANCE OF WARRANT CERTIFICATES.
(a) Form of Warrant Certificate. All Warrants shall be issued substantially in the
form of the Warrant Certificate annexed hereto as Exhibit A. The terms of any such
Certificate are incorporated herein by reference.
(b) Execution of Warrants. No Warrants shall have been duly and validly issued until
a Holder has received a Warrant Certificate executed by the Chairman or President of the Company
and the Secretary or Treasurer of the Company and such Warrant Certificate is countersigned by an
authorized officer of the Transfer Agent. Any Warrant Certificates may be executed by the officers
of the Company by means of a facsimile signature. The Transfer Agent shall maintain the register
of all Holders.
(c) Maximum Number of Warrants. The Company hereby authorizes the Transfer Agent to
issue up to an aggregate of [ ] Warrants pursuant to the Company’s written
instruction and the terms hereof subject to adjustment as hereafter provided in Section 8 hereof.
(d) Initial Holders. The Company shall deliver to the Transfer Agent a list of the
names of the persons who shall be the initial Holders of the Warrants and the number of Warrants to
which each such person is entitled. The Transfer Agent is hereby authorized by the Company to
promptly issue Warrant Certificates for up to [ ] Warrants upon receipt of the
written request of the Company, which shall include the list referred to in the preceding sentence.
The Company shall deliver to the Transfer Agent, along with this Warrant Agreement, a sufficient
number of duly executed Warrant Certificates. The Warrant Certificates shall be completed and
countersigned by the Transfer Agent and promptly mailed or delivered to the Holders pursuant to the
terms hereof. When requested by the Transfer Agent, from time to time hereafter, the Company will
execute additional Warrant Certificates in blank for the Transfer Agent to issue hereunder.
4. EXERCISE OF WARRANT. The rights represented by a Warrant may, subject to Section 8
below, be exercised in whole or in part at any time during the Exercise Period, by delivery of the
following to the Transfer Agent at its address set forth on the signature page hereto (or at such
other address as it may designate by notice in writing to the Holder):
(a) The Warrant Certificate and an executed Notice of Exercise in the form attached hereto;
and
(b) Payment of the Exercise Price either in cash or by check (subject to the limitations in
Section 4.2 below.
Certificates for Exercise Shares purchased under a Warrant shall be transmitted by the
Transfer Agent to the Holder by crediting the account of the Holder’s prime broker with the
Depository Trust Company through its Deposits and Withdrawal at Custodian (DWAC) system if the
Company is a participant in such system, and otherwise by physical delivery to the address
specified by the Holder in the Notice of Exercise within a commercially reasonable amount of time from the delivery to
the Transfer Agent of the Notice of Exercise, surrender of this Warrant and payment of the
aggregate Exercise Price as set forth above. A Warrant shall be deemed to have been exercised on
the date the Exercise Price is received by the Transfer Agent. The Exercise Shares shall be deemed
to have been issued, and Holder or any other person so designated to be named therein shall be
deemed to have become a holder of record of such shares for all purposes, as of the date such
Warrant has been exercised by payment to the Company through the Transfer Agent of the Exercise
Price.
The person in whose name any Exercise Shares are to be issued upon exercise of this Warrant
shall be deemed to have become the holder of record of such shares on the date on which the Warrant
was surrendered and payment of the Exercise Price was made, irrespective of the date of delivery of
such certificate or certificates, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are closed, such person shall be deemed to have become
the holder of such shares at the close of business on the next succeeding date on which the stock
transfer books are open.
To the extent permitted by law, the Company’s obligations to issue and deliver Exercise Shares
in accordance with the terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect to any provision
hereof, the recovery of any judgment against any person or entity or any action to enforce the
same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other person or entity of any obligation to the Company or the Transfer
Agent or any violation or alleged violation of law by the Holder or any other person or entity, and
irrespective of any other circumstance which might otherwise limit such obligation of the Company
to the Holder in connection with the issuance of Exercise Shares. Nothing herein shall limit a
Holder’s right to pursue any other remedies available to it
under a Warrant Certificate, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s failure to timely
deliver certificates representing shares of Common Stock upon exercise of a Warrant as required
pursuant to the terms hereof.
4.2 ISSUANCE OF NEW WARRANTS. Upon any partial exercise of a Warrant, the Transfer
Agent, at the Company’s expense, will forthwith and, in any event within a commercially reasonable amount of time, issue
and deliver to the Holder a new warrant or warrants of like tenor, registered in the name of the
Holder, exercisable, in the aggregate, for the balance of the number of shares of Common Stock
remaining available for purchase under such Warrant.
5. COVENANTS AS TO EXERCISE SHARES. The Company covenants and agrees that all
Exercise Shares that may be issued upon the exercise of the rights represented by a Warrant will,
upon issuance, be validly issued and outstanding, fully paid and nonassessable, and free from all
taxes, liens and charges with respect to the issuance thereof. The Company further covenants and
agrees that the Company will at all times during the Exercise Period, have authorized and reserved,
free from preemptive rights, a sufficient number of shares of Common Stock to provide for the
exercise of the rights represented by a Warrant. If at any time during the Exercise Period the
number of authorized but unissued shares of Common Stock shall not be sufficient to permit exercise
of a Warrant, the Company will take such corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of Common Stock to such number of shares
as shall be sufficient for such purposes.
6. CASHLESS EXERCISE. If at any time there is no effective Registration Statement
registering, or no current prospectus available for, the resale of the Exercise Shares by the
Holder, then a Warrant may also be exercised at such time by means of a “cashless exercise” in
which upon delivery of the Notice of Exercise and Warrant Certificate, the Transfer Agent will
within three business days notify the Company. The Company will deliver to the Transfer Agent
instructions for share delivery (using the calculation below) and the Holder shall be entitled to
receive within ten business days of delivery of the Notice of Exercise and Warrant Certificate to
the Transfer Agent a restricted certificate for the number of Exercise Shares equal to the quotient
obtained by dividing [(A-B) (X)] by (A), where:
| (A) | = | the VWAP on the Trading Day immediately preceding the date of such election; | ||||
| (B) | = | the Exercise Price of such Warrant, as adjusted; and | ||||
| (X) | = | the number of Exercise Shares issuable upon exercise of such Warrant in accordance with the terms of such Warrant by means of a cash exercise rather than a cashless exercise. |
“VWAP” means, for any date, the price determined by the first of the following clauses that
applies: (a) if the Common Stock is then listed or quoted on a trading market, the daily volume
weighted average price of the Common Stock for such date (or the nearest preceding date) on the
trading market on which the Common Stock is then listed or quoted for trading as reported by
Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m.
(New York City time); (b) if the OTC Bulletin Board is not a trading market, the volume weighted
average price of the Common Stock for such date (or the nearest preceding date) on the OTC Bulletin
Board; (c) if the Common Stock is not then quoted for trading on the OTC Bulletin Board and if
prices for the Common Stock are then reported in the “Pink Sheets” published by Pink Sheets, LLC
(or a similar organization or agency succeeding to its functions of reporting prices), the most
recent bid price per share of the Common Stock so reported; or (d) in all other cases, the fair
market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the purchasers of a majority in interest of the shares of Common Stock issued in the
Offering then outstanding and reasonably acceptable to the Company, the fees and expenses of which
shall be paid by the Company.
7. NO IMPAIRMENT. Except and to the extent as waived or consented to by each holder
of Warrants, the Company will not, by amendment of its Certificate of Incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all the provisions of this Agreement and a Warrant Certificate and in
the taking of all such action as may be necessary or appropriate in order to protect the exercise
rights of the Holder against impairment.
8. ADJUSTMENT OF EXERCISE PRICE AND SHARES.
(a) In the event of changes in the outstanding Common Stock of the Company by reason of stock
dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of shares,
separations, reorganizations, liquidations, consolidation, acquisition of the Company (whether
through merger or acquisition of substantially all the assets or stock of the Company), or the
like, the number, class and type of shares available under a Warrant in the aggregate and the
Exercise Price shall be correspondingly adjusted to give the Holder of a Warrant, on exercise for
the same aggregate Exercise Price, the total number, class, and type of shares or other property as
the Holder would have owned had a Warrant been exercised prior to the event and had the Holder
continued to hold such shares until the event requiring adjustment. The form of Warrant Certificate
need not be changed because of any adjustment in the number of Exercise Shares subject to a
Warrant.
(b) If at any time or from time to time the holders of Common Stock of the Company (or any
shares of stock or other securities at the time receivable upon the exercise of a Warrant) shall
have received or become entitled to receive, without payment therefor,
(i) Common Stock or any shares of stock or other securities which are at any time
directly or indirectly convertible into or exchangeable for Common Stock, or any rights or
options to subscribe for, purchase or otherwise acquire any of the foregoing by way of
dividend or other distribution (other than a dividend or distribution covered in Section
6(a) above);
(ii) any cash paid or payable otherwise than as a cash dividend; or
(iii) Common Stock or additional stock or other securities or property (including cash)
by way of spinoff, split-up, reclassification, combination of shares or similar corporate
rearrangement (other than shares of Common Stock pursuant to Section 6(a) above),
then and in each such case, the Holder a Warrant will, upon the exercise of such Warrant, be
entitled to receive, in addition to the number of shares of Common Stock receivable thereupon, and
without payment of any additional consideration therefor, the amount of stock and other securities
and property, as applicable, (including cash in the cases referred to in clauses (ii) and
(iii) above) which such Holder would hold on the date of such exercise had such Holder been the
holder of record of such Common Stock as of the date on which holders of Common Stock received or
became entitled to receive such shares or all other additional stock and other securities and
property.
(c) Upon the occurrence of each adjustment pursuant to this Section 8, the Company at
its expense will promptly compute such adjustment in accordance with the terms of this Agreement
and a Warrant Certificate and prepare a certificate setting forth such adjustment, including a
statement of the adjusted Exercise Price and adjusted number or type of Exercise Shares or other
securities issuable upon exercise of a Warrant (as applicable), describing the transactions giving
rise to such adjustments and showing in detail the facts upon which such adjustment is based. The
Company will promptly deliver a copy of each such certificate to the Holder and to the Transfer
Agent.
(d) Irrespective of any adjustment pursuant to this Section 8, the Warrant Certificates may
continue to express the same price and number and kind of shares as are stated in the Warrant
Certificates as initially issued.
9. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of a
Warrant as a consequence of any adjustment pursuant hereto. All Exercise Shares (including
fractions) issuable upon exercise of a Warrant may be aggregated for purposes of determining
whether the exercise would result in the issuance of any fractional share. If, after aggregation,
the exercise would result in the issuance of a fractional share, the Company shall through the
Transfer Agent, in lieu of issuance of any fractional share, pay the Holder otherwise entitled to
such fraction a sum in cash equal to the product resulting from multiplying the then current Fair
Market Value of an Exercise Share by such fraction. “Fair Market Value” of one share of Common
Stock shall mean (i) the average of the closing sales prices for the shares of Common Stock on AMEX
or other trading market where such security is listed or traded as reported by Bloomberg Financial
Markets (or a comparable reporting service of national reputation selected by the Company and
reasonably acceptable to the Holder if Bloomberg Financial Markets is not then reporting sales
prices of such security) (collectively, “Bloomberg”) for the ten (10) consecutive trading days
immediately preceding such date, or (ii) if AMEX is not the principal trading market for the shares
of Common Stock, the average of the reported sales prices reported by Bloomberg on the principal
trading market for the Common Stock during the same period, or, if there is no sales price for such
period, the last sales price reported by Bloomberg for such period, or (iii) if neither of the
foregoing applies, the last sales price of such security in the over-the-counter market on the pink
sheets or bulletin board for such security as reported by Bloomberg, or if no sales price is so
reported for such security, the last
bid price of such security as reported by Bloomberg or (iv) if Fair Market Value cannot be
calculated by the Company and provided to the Transfer Agent as of such date on any of the
foregoing bases, the Fair Market Value shall be as determined by the Board of Directors of the
Company in the exercise of its good faith judgment.
10. FUNDAMENTAL TRANSACTIONS. If, at any time while a Warrant is outstanding, (i) the
Company effects any merger or consolidation of the Company with or into another entity, in which
the shareholders of the Company as of immediately prior to the transaction own less than a majority
of the outstanding stock of the surviving entity, (ii) the Company effects any sale of all or
substantially all of its assets in one or a series of related transactions, (iii) any tender offer
or exchange offer (whether by the Company or another person or entity) is completed pursuant to
which holders of Common Stock are permitted to tender or exchange their shares for other
securities, cash or property, or (iv) the Company effects any reclassification of the Common Stock
or any compulsory share exchange pursuant to which the Common Stock is effectively converted into
or exchanged for other securities, cash or property (other than as a result of a subdivision or
combination of shares of Common Stock covered by Section 6 above) (each, a “Fundamental
Transaction”), then the Holder shall have the right thereafter to receive, upon exercise of a
Warrant, the same amount and kind of securities, cash or property, as applicable, as it would have
been entitled to receive upon the occurrence of such Fundamental Transaction if it had been,
immediately prior to such Fundamental Transaction, the holder of the number of Exercise Shares then
issuable upon exercise in full of such Warrant (the “Alternate Consideration”). Following any
transaction contemplated by this Section 10, the term Exercise Shares shall be deemed to
refer to the shares for which such Warrant is thereafter exercisable in accordance with the
provisions hereof. In addition, if holders of Common Stock are given a choice as to the securities,
cash (which shall be treated in accordance with the preceding paragraph) or property to be received
in a Fundamental Transaction (including a right to elect to receive any particular one or
combination of more than one of the foregoing), then the Holder shall be given the same choice of
consideration upon any exercise of a Warrant following such Fundamental Transaction, which choice
of consideration can be made at the time of exercise at any time prior to the expiration of the
Exercise Period.
(a) AGREEMENT OF HOLDERS. Every Holder of a Warrant, by his acceptance thereof,
consents and agrees with the Company, the Transfer Agent and every other Holder of a Warrant that
the Company and the Transfer Agent may deem and treat the person in whose name the Warrant
Certificate is registered as the Holder and as the absolute, true and lawful owner of the Warrants
represented thereby for all purposes, and neither the Company nor the Transfer Agent shall be
affected by any notice or knowledge to the contrary.
11. DUTIES OF TRANSFER AGENT.
(a) No Representation by Transfer Agent. The Transfer Agent acts hereunder as agent
and in a ministerial capacity for the Company, and its duties shall be determined solely by the
provisions hereof. The Transfer Agent shall not, by issuing and delivering Warrant Certificates or
by any other act hereunder be deemed to make any representations as to the validity, value or
authorization of the Warrant Certificates or the Warrants represented thereby or of any securities
or other property delivered upon exercise of any Warrant or whether any stock issued upon exercise
of any Warrant is fully paid and nonassessable.
(b) No Duty to Make Exercise Price Adjustment; Limits on Liability. The Transfer
Agent shall not at any time be under any duty or responsibility to any Holder of Warrant
Certificates to make or cause to be made any adjustment of the Exercise Price provided in this
Agreement, or to determine whether any fact exists which may require any such adjustments, or with
respect to the nature or extent of any such adjustment, when made, or with respect to the method
employed in making the same. It shall not (a) be liable for any recital or statement of facts
contained herein or for any action taken, suffered or omitted by it in reliance on any Warrant
Certificate or other document or instrument believed by it in good faith to be genuine and to have
been signed or presented by the proper party or parties, (b) be responsible for any failure on the
part of the Company to comply with any of its covenants and obligations contained in this Agreement
or in any Warrant Certificate, or (c) be liable for any act or omission in connection with this
Agreement except for its own gross negligence or willful misconduct.
(c) Consultation with Counsel. The Transfer Agent may at any time consult with
counsel satisfactory to it (who may be counsel for the Company) and shall incur no liability or
responsibility for any action taken, suffered or omitted by it in good faith in accordance with the
opinion or advice of such counsel.
(d) Evidence by Instrument. Any notice, statement, instruction, request, direction,
order or demand of the Company shall be sufficiently evidenced by an instrument signed by the
Chairman, President, Chief Financial Officer, its Secretary, or Assistant Secretary, (unless other
evidence in respect thereof is herein specifically prescribed). The Transfer Agent shall not be
liable for any action taken, suffered or omitted by it in accordance with such notice, statement,
instruction, request, direction, order or demand believed by it to be genuine.
(e) Compensation for Transfer Agent Services. The Company agrees to pay the Transfer
Agent reasonable compensation for its services hereunder and to reimburse it for its reasonable
expenses hereunder and further agrees to indemnify the Transfer Agent and save it harmless against
any and all losses, expenses and liabilities, including judgments, reasonable costs and counsel
fees, for anything done or omitted by the Transfer Agent in the execution of its duties and powers
hereunder except losses, expenses and liabilities arising as a result of the Transfer Agent’s gross
negligence or willful misconduct.
(f) Resignation of Transfer Agent. The Transfer Agent may resign its duties and be
discharged from all further duties and liabilities hereunder (except liabilities arising as a
result of the Transfer Agent’s own gross negligence or willful misconduct), after giving 30 days’
prior written notice to the Company. At least 15 days prior to the date such resignation is to
become effective, the Transfer Agent shall cause a copy of such notice of resignation to be mailed
to the Holder of each Warrant Certificate at the Company’s expense. Upon such resignation, or any
inability of the Transfer Agent to act as such hereunder, the Company shall appoint a new Transfer
Agent in writing. The Company shall have complete discretion in the naming of a new Transfer
Agent, who may be an affiliate, subsidiary or department of the Company, or any person used by the
Company as transfer agent for the Common Stock. If the Company shall fail to make such appointment
within a period of 15 days after it has been notified in writing of such resignation by the
resigning Transfer Agent, then the Holder of any Warrant Certificate may apply to any court of
competent jurisdiction for the appointment of a new Transfer Agent.
(g) Removal of Transfer Agent. The Company may, upon notice to the Holders, remove
and replace the Transfer Agent for any reason.
(h) Appointment and Duties of New Transfer Agent. After acceptance in writing of an
appointment by a new transfer agent is received by the Company, such new transfer agent shall be
vested with the same powers, rights, duties and responsibilities as if it had been originally named
herein as the Transfer Agent, without any further assurance, conveyance, act or deed. Any former
Transfer Agent hereby agrees to cooperate with and deliver all records and Warrant Certificates to
the new transfer agent at the direction of the new transfer agent and the Company.
(i) Notification of New Transfer Agent. Not later than the effective date of an
appointment of a new transfer agent by the Company, the Company shall file notice with the
resigning or terminated Transfer Agent and shall forthwith cause a copy of such notice to be mailed
to each Holder.
(j) Successor to Transfer Agent. Any corporation into which the Transfer Agent or any
new transfer agent may be converted or merged or any corporation resulting from any consolidation
to which the Transfer Agent or any new transfer agent shall be a party or any corporation
succeeding to the trust business of the Transfer Agent shall be a successor transfer agent under
this Agreement without any further act. Any such successor transfer agent shall promptly cause
notice of its succession as transfer agent to be mailed to the Company and to each Holder.
(k) Acting in Other Capacity. Nothing herein shall preclude the Transfer Agent from
acting in any other capacity for the Company.
12. NO STOCKHOLDER RIGHTS. Other than as provided in Section 5 or otherwise
herein, this Warrant in and of itself shall not entitle the Holder to any voting rights or other
rights as a stockholder of the Company.
13. TRANSFER OF WARRANT. Subject to compliance with any applicable laws, this
Agreement and any Warrant Certificate issued hereunder and all rights hereunder are transferable,
by the Holder in person or by duly authorized attorney, upon delivery of this Warrant and the form
of assignment attached hereto to any transferee designated by the Holder.
14. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. Upon receipt by the Transfer Agent
of evidence satisfactory to it of the loss, theft, destruction or mutilation of a Warrant
Certificate, and (a) in the case of such loss, theft or destruction, of reasonably satisfactory
indemnification and bonding, or (b) if mutilated, upon surrender and cancellation of such Warrant
Certificate, the Transfer Agent shall execute and deliver a new Warrant Certificate of like tenor.
Any such new Warrant Certificate executed and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not the Warrant Certificate so lost, stolen,
destroyed or mutilated shall be at any time enforceable by anyone.
15. NOTICES, ETC. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be notified,
(b) when sent by confirmed telex, electronic transmission or facsimile if sent during normal
business hours of the recipient, if not, then on the next business day, (c) five days after
having been sent by registered or certified mail, return receipt requested, postage prepaid, or
(d) one day after deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be sent to the Company or
the Transfer Agent at the address listed on the signature page hereto and to the Holder at the
applicable address set forth on the books of the Transfer Agent or at such other address as the
Company or the Holder may designate by ten (10) days advance written notice to the other parties
hereto.
16. GOVERNING LAW. This Agreement Warrant shall be governed by, and construed in
accordance with, the laws of the State of New York. Each of the parties to this Agreement hereby
submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated thereby. Each of the parties to this Agreement
irrevocably and unconditionally waives any objection to the laying of venue of any suit or
proceeding arising out of or relating to this Agreement in Federal and state courts in the Borough
of Manhattan in The City of New York and irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such suit or proceeding in any such court has been
brought in an inconvenient forum.
17. AMENDMENT OR WAIVER. Any term of this Agreement or any Warrant Certificate may be amended
or waived (either generally or in a particular instance and either retroactively or prospectively)
with the written consent of the Company, the Transfer Agent and the holders of Warrants
representing at least two-thirds of the number of shares of Common Stock then subject to
outstanding Warrants, except that the amendment or waiver of any provision of Sections 6 or 10
shall require the written consent of the Company, the Transfer Agent and the holders of Warrants
representing at least 90% of the number of shares of Common Stock then subject to outstanding
Warrants. Notwithstanding the foregoing, (a) this Agreement and any Warrant Certificate may be
amended and the observance of any term hereunder may be waived without the written consent of the
Holder only in a manner which applies to all Warrants in the same fashion and (b) the number of
Exercise Shares subject to a Warrant and the Exercise Price of a Warrant may not be amended, and
the right to exercise this Warrant may not be waived, without the written consent of the Holder.
The Company and the Transfer Agent shall give prompt written notice to the Holder of any amendment
hereof or waiver hereunder that was effected without the Holder’s written consent. No waivers of
any term, condition or provision of this Agreement or any Warrant Certificate, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing waiver of any such term,
condition or provision.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company and the Transfer Agent have executed this Agreement by their
duly authorized officers as of the date first set forth above.
| PolyMedix, Inc. | ||||||
| By: | ||||||
| President and Chief Executive Officer | ||||||
[Corporate Seal] |
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| 000 X. Xxxxxx-Xxxxxxx Xxxx, Xxxxx 000 | ||||||
| Xxxxxx, XX 00000 | ||||||
| Fax: | ||||||
| Email: | ||||||
| American Stock Transfer & Trust Company, LLC | ||||||
| By: | ||||||
[Corporate Seal] |
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| [ADDRESS] | ||||||
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EXHIBIT A
WARRANT CERTIFICATE
Warrants
POLYMEDIX, INC.
WARRANTS TO PURCHASE COMMON STOCK
VOID FOR ANY PURPOSE AFTER 5:00 PM , EASTERN TIME, ON , 2013
WARRANTS TO PURCHASE COMMON STOCK
VOID FOR ANY PURPOSE AFTER 5:00 PM , EASTERN TIME, ON , 2013
| This Certificate certifies that, for value received, | |||||
The Exercise Price and the number of shares of Common Stock purchasable upon exercise of the
Warrants set forth above are based on the Common Stock of the Company outstanding as of the
issuance date of this Warrant Certificate and are subject to adjustment as provided in Section 8 of
the Warrant Agreement.
Upon surrender of this Warrant Certificate and payment of the Exercise Price, the Company
shall issue and cause to be delivered to the registered holder of this Warrant Certificate a
certificate for the number of shares of Common Stock issuable for the Warrants then being exercised
as provided in the Warrant Agreement.
No Warrant may be exercised after 5:00 P.M., Eastern Time, on ___, 2013 (the “Expiration
Date”). If such date is not a Trading Day as defined in the Warrant Agreement, the Expiration Date
shall mean 5:00 P.M., Eastern Time, the next following Trading Day. To the extent not exercised
and delivered to the Transfer Agent by the Expiration Date, the Warrants shall be null and void.
The Company shall use commercially reasonable efforts to keep a registration statement (a
“Registration Statement”) with respect to the issuance and sale of the Exercise Shares to the
Holder, or such Holder’s valid assignee, in effect during the Exercise Period or such shorter
period that will terminate when a Warrant has been exercised, and during such time period shall use
commercially reasonable efforts to obtain the prompt withdrawal of any stop order suspending the
effectiveness of any such Registration Statement. At any time during which the Exercise Shares are
included in a then-effective Registration Statement, the Company may suspend the ability of the
Holder to exercise a Warrant in any manner contemplated by this Agreement and a Warrant
Certificate, for a reasonable period or periods (a “Black-out Period”), in the event that (i)(a) an
event occurs and is continuing as a result of which the Registration Statement including the
Exercise Shares, any related prospectus or any document incorporated therein by reference as then
amended or supplement would, in the Company’s good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, and (b) the
Company determined in its good faith judgment that the disclosure of such event at such time
would be to the detriment of the business, operations or prospects of the Company or the disclosure
otherwise relates to a business transaction, operations or other material event which has not yet
been publicly disclosed, or (ii) the Registration Statement is no longer effective and the holder
is not permitted to sell Exercise Shares pursuant to any other registration statement or an
exemption to the registration requirements of the Securities Act of 1933, as amended (the
“Securities Act”); provided, however, that in the event that a Black-out Period occurs subsequent
to the one year anniversary of a Warrant’s date of issuance, such Warrant shall be exercised
subject to the terms and conditions of Section 6 of the Warrant Agreement. Notwithstanding the
foregoing provisions of this paragraph, (i) if a Holder is not able to exercise a Warrant because
the Company has implemented a Black-out Period, then the Exercise Period shall be extended for the
number of calendar days covered by such Black-out Period and (ii) the Company will use commercially
reasonable efforts to ensure that the aggregate number of days covered by Black-out Periods shall
not last for more than twenty (20) consecutive days or exceed sixty (60) in a particular calendar
year; provided, however, that the holder may not receive any penalties, cash payments or any other
liquidated damages for failure to deliver registered Exercise Shares so long as the Company has
used commercially reasonable efforts to deliver the Holder the Exercise Shares as contemplated in
Section 4 of the Warrant Agreement or otherwise complies with the covenants in this paragraph, and
(c) if the Black-out Period is required because the Registration Statement is no longer effective
and the Holder is not permitted to sell Exercise Shares pursuant to any other registration
statement or an exemption to the registration requirements of the Securities Act of 1933, then the
Exercise Period shall be extended until such Holder may sell such Exercise Shares.
The further provisions of this Warrant Certificate set forth on the reverse hereof and the
further provisions of the Warrant Agreement shall for all purposes have the same effect as if set
forth fully at this place.
This Warrant Certificate is not valid unless countersigned by the Transfer Agent.
IN WITNESS WHEREOF, PolyMedix, Inc. has caused this Warrant Certificate to be duly executed
under its corporate seal.
Countersigned:
American Stock Transfer & Trust Company, LLC as Transfer Agent
| By: | ||||||
| Dated: |
(SEAL)
| PolyMedix, Inc. | ||||||
| By: | ||||||
| By: | ||||||
PolyMedix, Inc.
This Warrant Certificate and each Warrant represented hereby are issued pursuant to and are
subject in all respects to the terms and conditions set forth in the Warrant Agreement, which is
incorporated herein by reference. Please refer to the Warrant Agreement for a description of the
rights, limitations of rights, obligations, duties and immunities hereunder of the Transfer Agent,
the Company and the registered holders of the Warrants. In the event the registered holders do not
comply with the terms of the Warrant Agreement, the Warrants shall immediately become null and
void.
The Warrant Agreement provides that upon the occurrence of certain events, the Exercise Price
set forth on the face hereof may, under certain conditions, be adjusted. If the Exercise Price is
adjusted, the Warrant Agreement provides that the Exercise Price in effect immediately prior to
such event shall be adjusted so that the registered holder of each Warrant may receive the number
of shares of Common Stock of the Company to which it would have been entitled upon such action if
such registered holder had so exercised the Warrant immediately prior to the event. No fractional
shares of Common Stock will be issued upon exercise of the Warrant. If any fraction of a share of
Common Stock would be issuable upon the exercise of the Warrants (or any specified portion
thereof), the Company shall pay an amount in cash as provided in the Warrant Agreement.
Upon surrender of this Warrant Certificate and similar Warrant Certificates at the principal
office of the Transfer Agent, by the registered holder hereof in person or by an attorney duly
authorized in writing, such Warrant Certificates may be transferred or exchanged in the manner and
subject to the limitations provided in the Warrant Agreement, for another Warrant Certificate or
Warrant Certificates of like tenor, evidencing in the aggregate the number of Warrants evidenced by
the Warrant Certificates so surrendered and registered in the name or names as requested by the
then registered owner thereof or by an attorney duly authorized in writing. In the case of the
exercise of less than all the Warrants represented hereby, the registered holder shall be entitled
to receive upon surrender of this Warrant Certificate another Warrant Certificate or Warrant
Certificates for the balance of the Warrants evidenced by this Warrant Certificate as provided in
the Warrant Agreement.
Prior to the exercise of any Warrant represented hereby, the registered holder shall not be
entitled to any rights of a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant Agreement.
Receipt of this Warrant Certificate by the registered holder shall constitute acceptance of
and agreement to all of the terms and conditions contained in the Warrant Agreement.
The Company and the Transfer Agent shall treat the registered holder as the absolute owner
hereof and of each Warrant represented hereby for all purposes and shall not be affected by any
notice to the contrary.
This Warrant Certificate shall be governed by and construed in accordance with the laws of the
State of New York. The registered holder hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated thereby.
The registered holder irrevocably and unconditionally waives any objection to the laying of venue
of any suit or proceeding arising out of or relating to this Warrant in Federal and state courts in
the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such suit or proceeding in any such court
has been brought in an inconvenient forum
NOTICE OF EXERCISE
Dated: , 20___
The undersigned hereby irrevocably elects to exercise the within Warrant to the extent of
purchasing ___ shares of Common Stock and hereby makes payment of $ in
satisfaction of the Exercise Price thereof.
| INSTRUCTIONS FOR REGISTRATION OF STOCK | ||||
Address |
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Signature |
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Tax Identification Number |
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ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not
use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned
to
Name: |
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| (Please Print) | ||||||
Address: |
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| (Please Print) | ||||||
Dated: |
, 20___ | |||||
Holder’s Signature: |
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Holder’s Address: |
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NOTE: The signature to this Assignment Form must correspond with the name as it appears on the
face of the Warrant Certificate representing the Warrant, 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.
