Exhibit 10.3
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT.
NO.: W-B-001 NO. OF SHARES SUBJECT TO WARRANT: 294,167
HOLDER: TREGA BIOSCIENCES, INC.
DATE: AUGUST 20, 1999
WARRANT TO PURCHASE SHARES OF
THE COMMON STOCK OF
XXXXXXXXXXXXX.XXX, INC.
This is to certify that, for value received, TREGA BIOSCIENCES, INC., a
Delaware corporation (the "HOLDER"), is entitled to purchase, subject to the
provisions of this Warrant, from XXXXXXXXXXXXX.XXX, INC., a Delaware corporation
(the "COMPANY"), up to 294,167 shares of the common stock, $0.001 par value, of
the Company ("COMMON STOCK"), at an exercise price of $5.00 per share. The
number of shares of Common Stock to be received upon the exercise of this
Warrant and the price to be paid therefor may be adjusted from time to time as
hereinafter set forth. The shares of Common Stock deliverable upon such
exercise, and as adjusted from time to time, are hereinafter sometimes referred
to as "WARRANT SHARES," and the exercise price of a share of Common Stock in
effect at any time and as adjusted from time to time is hereinafter sometimes
referred to as the "EXERCISE PRICE."
1. EXERCISE OF WARRANT. Subject to the provisions and conditions set
forth herein, this Warrant may be exercised in whole or in part at any time
during the period beginning on the date hereof and ending not later than 5:00
p.m. Pacific Time on August 20, 2009 (the "EXPIRATION DATE").
(a) METHODS. The Holder may exercise this Warrant, in whole or
in part, by either of the following methods:
(x) Delivery to the Company at its principal office of
(i) a written notice of the Holder's election to
exercise this Warrant (in the form attached hereto as
EXHIBIT A), which notice shall specify the number of
Warrant Shares to be purchased, (ii) this Warrant and
(iii) a sum equal to the aggregate Exercise Price
therefor payable by wire transfer to a bank account
specified by the Company or by such other method as
the Company and the Holder may otherwise agree; or
(y) In a "CASHLESS" or "NET-ISSUE" exercise by delivery
to the Company at its principal office of this
Warrant and a written notice of the Holder's election
to exercise this Warrant (in the form attached hereto
as EXHIBIT A and
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marked to reflect the net-issue exercise), which
notice shall specify the number of shares of Common
Stock to be delivered to the Holder and the number of
shares of Common Stock with respect to which this
Warrant is being surrendered in payment of the
aggregate Exercise Price for the shares of Common
Stock to be delivered to the Holder. Upon such
exercise, the Holder shall be entitled to receive
shares equal to the value of this Warrant (or the
portion thereof being canceled) by surrender of this
Warrant to the Company together with notice of such
election in which event the Company shall issue to
the Holder a number of shares of the Common Stock
computed as of the date of surrender of this Warrant
to the Company using the following formula:
X = Y (A-B)
-------
A
Where:
X = the number of shares of Common Stock to be
issued to the Holder under this Section
1(a);
Y = the number of shares of Common Stock
purchasable under this Warrant, or any
lesser number of shares as to which this
Warrant is being exercised (at the date of
such calculation);
A = the fair market value of one Warrant Share
(at the date of such calculation);
B = the Exercise Price (as adjusted to the date
of such calculation).
(b) FAIR MARKET VALUE. For purposes of this Warrant, "FAIR
MARKET VALUE" of one share of Common Stock shall mean:
(1) the average closing price per share of the Common
Stock over the most recent ten (10) trading days on
the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or
(2) if not listed or traded on any such exchange, the
average last reported sales price per share on the
Nasdaq National Market or the Nasdaq Small-Cap Market
over the most recent ten (10) trading days, or
(3) if not listed or traded on any such exchange or
Nasdaq, the average, over the most recent ten (10)
trading days, of each such day's last bid and asked
price per share as reported in the "PINK SHEETS"
published by the National Quotation Bureau, Inc., or
(4) if such quotations are not available, the fair market
value per share of the Common Stock on the date such
notice was received by the Company as reasonably
determined by the Board of Directors of the Company.
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(c) NOTICE. Any notice of exercise given pursuant to this
Section 1 may be in the form attached hereto as EXHIBIT A. Upon delivery
thereof, the Company shall cause to be executed and delivered to the Holder
within five (5) business days a certificate or certificates representing the
aggregate number of fully-paid and nonassessable shares of Common Stock issuable
upon such exercise.
(d) CERTIFICATES. The stock certificate or certificates for
shares of Common Stock so delivered shall be in such denominations as may be
specified in the notice and shall be registered in the name of the Holder. Such
certificate or certificates shall be deemed to have been issued and the Holder
shall be deemed to have become a holder of record of such shares, including to
the extent permitted by law the right to vote such shares or to consent or to
receive notice as a stockholder, as of the time the notice is delivered to the
Company. If this Warrant shall have been exercised only in part, the Company
shall, at the time of delivery of the certificate or certificates for shares of
Common Stock, deliver to the Holder a new Warrant dated the date it is issued,
evidencing the rights of the Holder to purchase the remaining shares of Common
Stock, which new Warrant shall in all other respects be identical to this
Warrant, or, at the request of the Holder, appropriate notation may be made on
this Warrant and the Warrant shall be returned to the Holder.
(e) EXPENSES. The Company shall pay all expenses, transfer
taxes and other charges payable in connection with the preparation, issue and
delivery of stock certificates under this Section 1.
(f) VALID ISSUANCE. All shares of Common Stock issuable upon
the exercise of this Warrant shall be validly issued, fully paid and
nonassessable and free from all liens and other encumbrances thereon, other than
liens or other encumbrances created by the Holder.
2. RESERVATION OF SHARES. The Company hereby agrees that at all times
there shall be reserved for issuance and/or delivery upon exercise of this
Warrant such number of shares of the Common Stock as shall be required for
issuance and delivery upon exercise of this Warrant.
3. FRACTIONAL SHARES. The Company shall not be required to issue
fractions of shares on the exercise of this Warrant. If any fraction of a share
would, except for the provisions of this Section, be issuable on the exercise of
this Warrant, the Company will (1) if the fraction of a share otherwise issuable
is equal to or less than one-half, round down and issue to the Holder only the
largest whole number of shares of Common Stock to which the Holder is otherwise
entitled, or (2) if the fraction of a share otherwise issuable is greater than
one-half, round-up and issue to the Holder one additional share of Common Stock
in addition to the largest whole number of shares of Common Stock to which the
Holder is otherwise entitled.
4. EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the
Company of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction) of
such indemnification as the Company may in its discretion impose, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver to the Holder a new Warrant of like tenor and date.
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5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth herein.
6. ANTIDILUTION PROVISIONS. The Exercise Price and the number and kind
of securities purchasable upon the exercise of this Warrant shall be subject to
adjustment from time to time as hereinafter provided:
(a) STOCK DIVIDEND. In case the Company shall issue Common
Stock as a dividend upon Common Stock or in payment of a dividend thereon, shall
subdivide the number of outstanding shares of Common Stock into a greater number
of shares or shall contract the number of outstanding shares of Common Stock
into a lesser number of shares, the Exercise Price then in effect shall be
adjusted, effective at the close of business on the record date for the
determination of stockholders entitled to receive such dividend or be subject to
such subdivision or contraction, to the price (computed to the nearest cent)
determined by dividing (x) the product obtained by multiplying the Exercise
Price in effect immediately prior to the close of business on such record date
by the number of shares of Common Stock outstanding prior to such dividend,
subdivision or contraction, by (y) the sum of the number of shares of Common
Stock outstanding immediately after such dividend, subdivision, or contraction.
(b) REORGANIZATION. If any capital reorganization or
reclassification of the capital stock of the Company (other than as set forth in
subsection (a) of this Section 6), or consolidation or merger of the Company
with another corporation, or the sale of all or substantially all of its assets
to another corporation shall be effected, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provision shall be made whereby the Holder shall thereafter have the
right to purchase and receive upon the basis and upon the terms and conditions
specified in this Warrant and in lieu of the shares of Common Stock immediately
theretofore purchasable and receivable upon the exercise of the rights
represented by this Warrant, such shares of stock, securities or assets as may
be issued or payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such Common Stock
immediately theretofore purchasable and receivable upon the exercise of the
rights represented by this Warrant had such reorganization, reclassification,
consolidation, merger or sale not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interest of the Holder to
the end that the provisions of this Warrant (including, without limitation,
provisions for adjustment of the Exercise Price and of the number of shares
issuable upon the exercise of this Warrant) shall thereafter be applicable as
nearly as may be practicable in relation to any shares of stock, securities or
assets thereafter deliverable upon exercise of this Warrant. The Company shall
not effect any such consolidation, merger or sale unless prior to or
simultaneously with the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume, by written instrument, the
obligation to deliver to the Holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, the Holder may be entitled to
purchase.
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(c) NUMBER OF SHARES. Upon each adjustment of the Exercise
Price pursuant to subsection (a) of this Section 6, the number of shares of
Common Stock specified in this Warrant shall thereupon evidence the right to
purchase that number of shares of Common Stock (calculated to the nearest
hundredth of a share of Common Stock) obtained by multiplying the Exercise Price
in effect immediately prior to such adjustment by the number of shares of Common
Stock purchasable immediately prior to such adjustment upon exercise of this
Warrant and dividing the product so obtained by the Exercise Price in effect
after such adjustment.
(d) CONTINUING EFFECTIVENESS. Irrespective of any adjustments
of the number or kind of securities issuable upon exercise of this Warrant or
the Exercise Price, Warrants theretofore or thereafter issued may continue to
express the same number of shares of Common Stock and Exercise Price as are
stated in similar Warrants previously issued.
(e) ACCOUNTING FIRM. The Company may, at its sole option,
retain the independent public accounting firm regularly retained by the Company,
or another firm of independent public accountants of recognized standing
selected by the Company's Board of Directors, to make any computation required
under this Section 6 and a certificate signed by such firm shall be conclusive
evidence of any computation made under this Section 6.
(f) ADJUSTMENT CERTIFICATE. Whenever there is an adjustment in
the Exercise Price or in the number or kind of securities issuable upon exercise
of this Warrant, or both, as provided in this Section 6, the Company shall (i)
promptly file in the custody of its Secretary or Assistant Secretary a
certificate signed by the Chairman of the Board or the President or a Vice
President of the Company and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Company, setting forth the facts
requiring such adjustment and the number and kind of securities issuable upon
exercise of this Warrant after such adjustment; and (ii) cause a notice stating
that such adjustment has been effected and stating the Exercise Price then in
effect and the number and kind of securities issuable upon exercise of this
Warrant to be sent to the Holder.
(g) ADJUSTMENT EVENTS. The Exercise Price and the number of
shares issuable upon exercise of this Warrant shall not be adjusted except in
the manner and only upon the occurrence of the events heretofore specifically
referred to in this Section 6.
(h) BOARD ACTIONS. The Board of Directors of the Company may,
in its sole discretion, (i) reduce the Exercise Price, (ii) increase the number
of shares of Common Stock issuable upon exercise of this Warrant and/or (iii)
provide for the issuance of other securities (in addition to the shares of
Common Stock otherwise issuable upon exercise of this Warrant) upon exercise of
this Warrant.
7. NO TRANSFERS. The Warrant Shares or any other security issued or
issuable upon exercise of this Warrant may not be sold or otherwise disposed of
unless the Holder provides the Company with an opinion of counsel in form and
substance satisfactory to the Company that the Warrant Shares or such other
security may be legally transferred without violating the Securities Act of
1933, as amended (the "1933 ACT"), and any other applicable securities law and
then only
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against receipt of an agreement of the transferee to comply with the
provisions of this Section 7 with respect to any resale or other disposition
of such securities.
(a) ACKNOWLEDGEMENTS. The Holder, by acceptance hereof,
acknowledges that this Warrant and the Warrant Shares issuable upon exercise
hereof are being acquired solely for the Holder's own account and not as a
nominee for any other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of any Warrant Shares to be issued upon
exercise hereof except under circumstances that will not result in a violation
of the 1933 Act or any state securities laws. Upon exercise of this Warrant, the
Holder shall, if requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the Warrant Shares so purchased are being
acquired solely for the Holder's own account and not as a nominee for any other
party, for investment, and not with a view toward distribution or resale.
(b) RESTRICTIVE LEGENDS. This Warrant shall (and any Warrant
issued in substitution for this Warrant shall) be stamped or otherwise imprinted
with a legend in substantially the following form:
"THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER SUCH ACT."
Each stock certificate for Warrant Shares issued upon the exercise of this
Warrant and each stock certificate issued upon the direct or indirect transfer
of any such Warrant Shares shall be stamped or otherwise imprinted with a legend
in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT."
Notwithstanding the foregoing, the Holder may require the Company to issue a
stock certificate for Warrant Shares without a legend if (i) such Warrant
Shares, as the case may be, have been registered for resale under the 1933 Act
or sold pursuant to Rule 144 under the 1933 Act (or a successor rule thereto) or
(ii) the Holder has received an opinion of counsel reasonably satisfactory to
the Company that such registration is not required with respect to such Warrant
Shares.
8. OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of
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ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary.
XXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxx
----------------------------
Name: Xxxx Xxxx
Title: Chief Executive Officer
Dated: August 20, 1999
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THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT.
EXERCISE FORM
(To be executed upon exercise of Warrant No.W-B-001)
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant, to purchase Warrant Shares and (check one):
_______ herewith tenders payment for _______ of the Warrant Shares
to the order of Xxxxxxxxxxxxx.xxx, Inc. in the amount of
$_________ in accordance with the terms of the Warrant; or
_______ herewith tenders this Warrant for _______ Warrant
Shares pursuant to the "net issue" provisions of
Section 1 of the Warrant.
The undersigned requests that a certificate (or certificates) for such Warrant
Shares be registered in the name of the undersigned and that such certificate
(or certificates) be delivered to the undersigned's address below.
In exercising the Warrant, the undersigned hereby confirms and
acknowledges that the Warrant Shares are being acquired for investment solely
for the account of the undersigned and not as a nominee for any other party, and
that the undersigned will not offer, sell or otherwise dispose of any such
Warrant Shares except under circumstances that will not result in a violation of
the Securities Act of 1933, as amended, or any state securities laws.
Dated: ___________________.
Signature _____________________________________
Print Name:_____________________________________
Address: _____________________________________
_____________________________________
(City) (State) (Zip Code)
If said number of shares shall not be all the shares purchasable under the
Warrant, a new Warrant is to be issued in the name of the Holder for the balance
remaining of the shares purchasable thereunder.
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