Exhibit 4.1
WARRANT AGREEMENT FOR COMMON STOCK
This Agreement is made as of November 28, 2001, between Ribozyme
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and [HOLDER].
(the "Holder").
W I T N E S S E T H:
WHEREAS, the Company deems it advisable to issue to the Holder
warrants (the "Warrants") entitling the Holder to purchase an aggregate of
_______ shares of common stock, $0.01 par value per share (the "Common Stock").
The shares of Common Stock issued upon exercise of the Warrants are referred to
as the "Warrant Shares".
WHEREAS, the Company desires to enter into this Agreement to set forth
the terms and conditions of the Warrants and the rights of the holders thereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION, EXPIRATION AND TRANSFER OF WARRANT CERTIFICATES
Section 1.01 FORM OF WARRANT CERTIFICATES. The Warrants shall be
evidenced by certificates in definitive fully registered form (the "Warrant
Certificates") substantially in the form of Exhibit A and may have such letters,
numbers or other marks of identification and such endorsements placed thereon as
may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange, or
to conform to usage, or as consistently herewith may be determined by the
officers executing such Warrant Certificates as evidenced by their execution of
the Warrant Certificates. Each Warrant Certificate shall evidence the right,
subject to the provisions of this Agreement and of the Warrant Certificate, to
purchase the number of shares of Common Stock stated therein, adjusted as
provided for in Article III hereof, upon payment of the Exercise Price (as
defined in Section 2.01).
Section 1.02 EXECUTION OF WARRANT CERTIFICATES. Each Warrant
Certificate, whenever issued, shall be dated as of the date of signature thereof
by the Company either upon initial issuance or upon exchange, substitution or
transfer, shall be signed manually by, or bear the facsimile signature of, the
President or a Vice President of the Company, shall be attested by the manual or
facsimile signature of the Secretary or an Assistant Secretary of the Company.
In case any officer of the Company whose manual or facsimile signature has been
placed upon any Warrant Certificate shall have ceased to be such before such
Warrant Certificate is issued, it may be issued with the same effect as if such
officer had not ceased to be such at the date of issuance. Any Warrant
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Warrant Certificate, shall be a proper
officer of the Company to sign such Warrant Certificate, although at the date of
the execution of this Agreement any such person was not such an officer.
Section 1.03 ISSUANCE, DELIVERY AND REGISTRATION OF WARRANT
CERTIFICATES. The Company shall issue and deliver, at the closing of the sale of
the Shares to the Investors as provided for in the term sheet, dated on or about
November 27, 2001, signed by the Company and the Investors identified therein,
to the Holder or its designees, a Warrant Certificate representing the Warrants,
in substantially the form of Exhibit A. Additionally, the Company shall sign and
deliver Warrant Certificates upon exchange, transfer or substitution for one or
more previously signed Warrant Certificates as hereinafter provided. The Company
shall maintain books for the registration of transfer and registration of
Warrant Certificates (the "Warrant Register").
Section 1.04 TRANSFER AND EXCHANGE OF WARRANT CERTIFICATES. The
Company, from time to time, shall register the transfer of any outstanding
Warrant Certificates in the Warrant Register upon surrender at the principal
office of the Company of Warrant Certificates accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Company, duly
executed by the Warrantholder or the Warrantholder's attorney duly authorized in
writing, and evidence, satisfactory to the Company, of compliance with the
provisions of this Section 1.04. Upon any such registration of transfer, a new
Warrant Certificate shall be signed by the Company and issued to the transferee
and the surrendered Warrant Certificate shall be canceled by the Company.
Warrant Certificates may be exchanged at the option of the holder thereof, upon
surrender, properly endorsed, at the principal office of the Company, with
written instructions, for other Warrant Certificates signed by the Company
entitling the registered holder thereof, subject to the provisions thereof and
of this Agreement, to purchase in the aggregate a like number of shares of
Common Stock as the Warrant Certificate so surrendered. The Company may require
the payment of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any such exchange or transfer.
ARTICLE II
SHARES OF COMMON STOCK ISSUABLE, EXERCISE PRICE, EXPIRATION DATE AND EXERCISE
OF WARRANTS
Section 2.01 WARRANT SHARES ISSUABLE; EXERCISE PRICE; EXPIRATION DATE.
Each Warrant Certificate shall entitle the registered holder thereof, subject to
the provisions thereof and of this Agreement, to purchase from the Company at
any time from the date of this Agreement through the fifth anniversary of such
date the number of shares of Common Stock stated therein, adjusted as provided
in Article III, upon payment of $5.00 per share, adjusted as provided in Article
III. Such price, as in effect from time to time as provided in Article III, is
referred to as the "Exercise Price." Each share of Common Stock issuable upon
exercise of a Warrant is referred to as a "Warrant Share." Each Warrant not
exercised during the period set forth above shall become void, and all rights
thereunder and all rights in respect thereof under this Agreement shall cease on
November 28, 2006.
Section 2.02 EXERCISE OF WARRANTS. Except as provided by Section 2.03,
(a) warrants may be exercised by surrendering the Warrant Certificate evidencing
such Warrants at the principal office of the Company, with the Election to
Exercise form set forth on the reverse of the Warrant Certificate duly completed
and signed, and by paying in full to the Company (i) in cash, or (ii) by
certified or official bank check, or (iii) by any combination of the foregoing,
the Exercise Price for each Warrant Share as to which Warrants are then being
exercised and any applicable taxes, other than taxes that the Company is
required to pay hereunder. A Warrantholder may exercise such holder's Warrant
for the full number of Warrant Shares issuable upon exercise thereof or any
lesser number of whole Warrant Shares.
(b) As soon as practicable (but in no event later than the fourth
business day) after the exercise of any Warrants and payment by the
Warrantholder of the full Exercise Price for the Warrant Shares as to which such
Warrants are then being exercised, the Company shall requisition from the
transfer agent the shares of Common Stock and deliver to or upon the order of
such Warrantholder a certificate or certificates for the number of full Warrant
Shares to which such Warrantholder is entitled, registered in the name of such
Warrantholder or as such Warrantholder shall direct, or, at the request of the
Warrantholder, have delivered the Warrant Shares through the facilities of the
Depository Trust Company, pursuant to the written instructions of the
Warrantholder. Fractional Warrant Shares that otherwise would be issuable in
respect of such exercise shall be paid in cash as provided in Section 2.04, and
the number of Warrant Shares issuable to such Warrantholder shall be rounded
down to the next nearest whole number. If such Warrant Certificate shall not
have been exercised in full, the Company will issue to such Warrantholder a new
Warrant Certificate exercisable for the number of shares of Common Stock as to
which such Warrant shall not have been exercised. The Company will cancel all
Warrants so surrendered.
(c) Each person in whose name any such certificate for Warrant Shares
is issued shall for all purposes be deemed to have become the holder of record
of such Warrant Shares on the date on which the Warrant Certificate was
surrendered to the Company and payment of the Exercise Price and any applicable
taxes was made to the Company, irrespective of the date of delivery of such
certificate for Warrant Shares.
(d) All Warrant Shares will be duly authorized, validly issued, fully
paid and nonassessable. The Company will pay all documentary stamp taxes
attributable to the initial issuance of Warrant Shares. The Company will not be
required, however, to pay any tax imposed in connection with any transfer
involved in the issue of the Warrant Shares in a name other than that of the
Warrantholder. In such case, the Company will not be required to issue any
certificate for Warrant Shares until the person or persons requesting the same
shall have paid to the Company the amount of any such tax or shall have
established to the Company's satisfaction that the tax has been paid or that no
tax is due.
(e) If the Company fails to cause to deliver the Warrant Shares as
required by subsection (b) hereof by the fourth business day following such
request and payment of the Exercise Price by the Warrantholder, and if after
such fourth trading business day the Warrantholder purchases (in an open market
transaction or otherwise) Common Stock to deliver in satisfaction of a sale by
such Warrantholder of the Warrant Shares which the Warrantholder was entitled to
receive upon such exercise (a "Buy-In"), then the Company shall (A) pay in cash
to the Warrantholder the amount by which (x) the Warrantholder's total purchase
price (including brokerage commissions, if any) for the Common Stock so
purchased exceeds (y) the product of (1) the aggregate number of shares of
Common Stock that such Warrantholder was entitled to receive from the exercise
of the Warrant multiplied by (2) the market price of the Common Stock at the
time of the sale giving rise to such purchase obligation and (B) at the option
of the Warrantholder, either return the Warrant for which such exercise was not
honored or deliver to such Warrantholder the number of shares of Common Stock
that would have been issued had the Company timely complied with its conversion
and delivery obligations under this Section. For example, if the Warrantholder
purchases Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to an attempted exercise of the Warrant with respect to
which the market price of the Warrant Shares on the date of exercise totaled
$10,000, under sub-clause (A) of the immediately preceding sentence the Company
shall be required to pay the Warrantholder $1,000. The Warrantholder shall
provide the Company written notice indicating the amounts payable to the
Warrantholder in respect of the Buy-In.
Section 2.03 CASHLESS EXERCISE OF WARRANTS. If on a date of exercise a
registration statement concerning the Warrant Shares is unavailable or the
prospectus contained therein is unavailable for any reason, then the Warrants
may be exercised by surrendering to the Company the right to receive a portion
of the number of Warrant Shares with respect to which such Warrant is then being
exercised equal to the product obtained by multiplying such number of Warrant
Shares by a fraction, the numerator of which is the Exercise Price in effect on
the date of such exercise, and the denominator of which is the current market
price of the Common Stock in effect on such date. In the case of an exercise
pursuant to this section, the Holder shall provide to the Company written notice
containing a calculation showing the number of Warrant Shares to be issued after
giving effect to such surrender.
Section 2.04 NO FRACTIONAL SHARES TO BE ISSUED. If more than one
Warrant Certificate shall be surrendered for exercise at one time by the same
holder, the number of full Warrant Shares which shall be issuable upon exercise
thereof shall be computed on the basis of the aggregate number of Warrants so
surrendered. The Warrantholders, by their acceptance of the Warrant
Certificates, expressly waive their right to receive any fraction of a Warrant
Share or a share certificate representing a fraction of a Warrant Share. In lieu
thereof, the Company will purchase such fractional interest for an amount in
cash equal to the current market value of such fractional interest, as
reasonably determined by the Board of Directors of the Company.
Section 2.05 CANCELLATION OF WARRANTS. The Company shall cancel any
Warrant Certificate delivered to it for exercise, in whole or in part, or
delivered to it for transfer, exchange or substitution, and no Warrant
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall destroy canceled
Warrant Certificates. If the Company shall acquire any of the Warrants, such
acquisition shall not operate as a redemption or termination of the right
represented by such Warrants unless and until the Warrant Certificates
evidencing such Warrants are surrendered to the Company for cancellation.
ARTICLE III
ADJUSTMENT OF EXERCISE PRICE; MERGER, ACQUISITION, ETC.; RESERVATION OF SHARES
OF COMMON STOCK; PAYMENT OF TAXES
Section 3.01 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT
SHARES. The Exercise Price shall be subject to adjustment from time to time as
provided in this Article III. After each adjustment of the Exercise Price, each
Warrantholder shall at any time thereafter be entitled to purchase, at the
Exercise Price resulting from such adjustment, the number of Warrant Shares
obtained by multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of Warrant Shares purchasable pursuant to the
provisions of such Warrant immediately prior to such adjustment and dividing the
product thereof by the Exercise Price resulting from such adjustment.
Section 3.02 STOCK DIVIDENDS. If the Company shall declare a dividend
or any other distribution upon any capital stock which is payable in shares of
Common Stock or securities convertible into shares of Common Stock, the Exercise
Price shall be reduced to the quotient obtained by dividing (i) the number of
shares of Common Stock outstanding immediately prior to such declaration
multiplied by the then effective Exercise Price by (ii) the total number of
shares of Common Stock outstanding immediately after such declaration. All
shares of Common Stock and all convertible securities issuable in payment of any
dividend or other distribution upon the capital stock of the Company shall be
deemed to have been issued or sold without consideration.
Section 3.03 STOCK SPLITS AND REVERSE STOCK SPLITS. If the Company
shall subdivide its outstanding shares of Common Stock into a greater number of
shares, the Exercise Price shall be proportionately reduced and the number of
Warrant Shares issuable upon exercise of each Warrant shall be proportionately
increased. If the Company shall combine the outstanding shares of Common Stock
into a smaller number of shares, the Exercise Price shall be proportionately
increased and the number of Warrant Shares issuable upon exercise of each
Warrant shall be proportionately decreased.
Section 3.04 REORGANIZATIONS AND ASSET SALES. If any capital
reorganization or reclassification of the Company, or any consolidation or
merger of the Company with another corporation, or the sale of all or
substantially all of the assets of the Company shall be effected in such a way
that the holders of the shares of Common Stock shall be entitled to receive
securities or assets with respect to or in exchange for shares of Common Stock,
adequate provision shall be made, prior to and as a condition of such
reorganization, reclassification, consolidation, merger or sale, whereby each
Warrantholder shall have the right to receive, upon the terms and conditions
specified herein and in lieu of the Warrant Shares otherwise receivable upon the
exercise of such Warrants, such securities or assets as may be issued or payable
with respect to or in exchange for the number of outstanding shares of Common
Stock equal to the number of Warrant Shares otherwise receivable had such
reorganization, reclassification, consolidation, merger or sale not taken place.
In any such case appropriate provision shall be made with respect to the rights
and interests of such Warrantholder so that the provisions of this Agreement
shall be applicable with respect to any securities or assets thereafter
deliverable upon exercise of the Warrants. The Company shall not effect any such
consolidation, merger or sale unless prior to or simultaneously with the
consummation thereof the survivor or successor corporation resulting from such
consolidation or merger or the purchaser of such assets shall assume by written
instrument delivered to each holder of Warrants the obligation to deliver to
such holder such securities or assets as such holder may be entitled to receive,
subject to payment of the Exercise Price. Notwithstanding any other provision
contained herein, the Company may, upon notice and subject to the provisions of
Section 4.03 hereof, terminate the Warrants in the event of a consolidation or
merger described in this Section 3.04.
Section 3.05 COVENANT TO RESERVE SHARES FOR ISSUANCE ON EXERCISE. (a)
The Company represents and warrants that it has caused, and will continue to
cause, an appropriate number of shares of Common Stock to be duly and validly
authorized and reserved and will keep available out of its authorized shares of
Common Stock, solely for the purpose of issue upon exercise of Warrants as
herein provided, the full number of shares of Common Stock, if any, then
issuable if all outstanding Warrants then exercisable were to be exercised. The
Company covenants that all shares of Common Stock that shall be so issuable
shall be duly and validly issued and, upon payment of the Exercise Price, fully
paid and non-assessable. If at any time the number of authorized but unissued
shares of Common Stock shall not be sufficient for such purpose, the Company
will take such action as, in the opinion of its counsel, may be necessary to
increase its authorized but unissued Common Stock to such number of shares as
shall be sufficient for such purpose. Prior to the issuance of any Warrant
Shares, the Company shall secure the listing of such Warrant Shares upon any
securities exchange upon which shares of Common Stock are then listed, if any.
(b) The Company hereby authorizes and directs its current and future
transfer agents for the shares of Common Stock at all times to reserve such
number of authorized shares as shall be requisite for such purpose. The Company
will supply such transfer agents with duly executed stock certificates for such
purposes. Promptly after the date of expiration of the Warrants, no shares shall
be reserved in respect of such Warrants.
Section 3.06 STATEMENTS ON WARRANTS. The form of Warrant Certificate
need not be changed because of any adjustment made pursuant to this Article III,
and Warrant Certificates issued after such adjustment may state the same
Exercise Price and the same number of shares of Common Stock as are stated in
the Warrant Certificates initially issued pursuant to this Agreement. The
Company, however, may at any time in its sole discretion (which shall be
conclusive) make any change in the form of Warrant Certificate that it may deem
appropriate and that does not affect the substance thereof; and any Warrant
Certificates thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as so changed.
Section 3.07 NOTICE OF CHANGE IN SECURITIES ISSUABLE, ETC. Whenever
the securities issuable or deliverable in exchange for Warrants are changed
pursuant to this Article III, the Company promptly shall mail to each
Warrantholder a notice, executed by its chief financial officer, setting forth
in reasonable detail the facts requiring the change and specifying the effective
date of such change and the number or amount of, and describing the shares or
other securities issuable or deliverable in exchange for, each Warrant as so
changed. Failure to publish such notice, or any defect in such notice, shall not
affect the legality or validity of any such change.
Section 3.08 REFERENCES TO COMMON STOCK. Unless the context otherwise
indicates, all references to Common Stock in this Agreement and in the Warrant
Certificates, in the event of a change under this Article III, shall be deemed
to refer also to any other securities issuable or deliverable in exchange for
Warrants pursuant to such change.
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANTS
Section 4.01 NO RIGHTS AS SHAREHOLDERS. Nothing contained in this
Agreement or in any Warrant Certificate shall be construed as conferring on any
Warrantholder any rights whatsoever as a shareholder of the Company, including
the right to vote at, or to receive notice of, any meeting of shareholders of
the Company; nor shall the consent of any such holder be required with respect
to any action or proceeding of the Company; nor shall any such holder, by reason
of the ownership or possession of a Warrant or the Warrant Certificate
representing the same, either at, before or after exercising such Warrant, have
any right to receive any cash dividends, stock dividends, allotments or rights,
or other distributions (except as specifically provided herein), paid, allotted
or distributed or distributable to the shareholders of the Company prior to the
date of the exercise of such Warrant, nor shall such holder have any right not
expressly conferred by such holder's Warrant or Warrant Certificate.
Section 4.02 MUTILATED OR MISSING WARRANT CERTIFICATES. If any Warrant
Certificate is lost, stolen, mutilated or destroyed, the Company in its
discretion may issue, in exchange and substitution for and upon cancellation of
the mutilated Warrant Certificate, or in lieu of and substitution for the
Warrant Certificate lost, stolen or destroyed, upon receipt of a proper
affidavit or other evidence satisfactory to the Company (and surrender of any
mutilated Warrant Certificate) and bond of indemnity in form and amount and with
corporate surety satisfactory to the Company in each instance protecting the
Company, a new Warrant Certificate of like tenor and exercisable for an
equivalent number of shares of Common Stock as the Warrant Certificate so lost,
stolen, mutilated or destroyed. Any such new Warrant Certificate shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated or destroyed Warrant Certificate at any time
shall be enforceable by anyone. An applicant for such a substitute Warrant
Certificate also shall comply with such other reasonable regulations and pay
such other reasonable charges as the Company may prescribe. All Warrant
Certificates shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement of lost,
stolen, mutilated or destroyed Warrant Certificates, and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement of negotiable
instruments or other securities without their surrender.
Section 4.03 LIQUIDATION, MERGER, ETC.; NOTICE TO WARRANTHOLDERS. If:
(a) the Company shall authorize the issuance to all holders of Common Stock of
rights or warrants to subscribe for or purchase capital stock of the Company or
of any other subscription rights or warrants; or
(b) the Company shall authorize the distribution to all holders of
Common Stock of evidences of its indebtedness or assets (other than cash
dividends or cash distributions payable out of current earnings, retained
earnings or earned surplus or dividends payable in Common Stock); or
(c) there shall be proposed any consolidation or merger to which the
Company is to be a party and for which approval of the holders of Common Stock
is required, or the conveyance or transfer of the properties and assets of the
Company substantially as an entirety, or such other merger or transaction
described in Section 3.04 hereof; or
(d) there shall be proposed the voluntary or involuntary dissolution,
liquidation or winding up of the Company; the Company shall cause to be given to
each Warrantholder, by first-class mail, postage prepaid, a written notice
stating (i) the date as of which the holders of record of shares of Common Stock
to be entitled to receive any such rights, warrants or distribution are to be
determined or (ii) the date on which any consolidation, merger, conveyance,
transfer, reorganization, reclassification, dissolution, liquidation or winding
up is expected to become effective, and the date as of which it is expected that
holders of record of shares of Common Stock shall be entitled to exchange the
shares for securities or other property, if any, deliverable upon the
consolidation, merger, conveyance, transfer, reorganization, reclassification,
dissolution, liquidation or winding up. Such notice shall be filed and mailed in
the case of a notice pursuant to (i) above at least ten calendar days before the
record date specified and in the case of a notice pursuant to clause (ii) above
at least 20 calendar days before the earlier of the dates specified. From the
time notice is required to be given pursuant to this Section 4.03, the holders
of Warrants shall be entitled to exercise such Warrants regardless of the
provisions of Section 2.01. Unless assumed by the survivor or successor
corporation resulting from any transaction described in Section 4.03(c) hereof,
the Warrants shall expire and be of no further force or effect upon consummation
of such transaction.
ARTICLE V
MISCELLANEOUS
Section 5.01 REGISTRATION OF WARRANT SHARES. (a) If, at any time
following the date hereof and prior to the close of business on the fifth
anniversary of the Effective Date, there is no registration statement in effect
for the Warrant Shares, the Company, upon the written request of holders of
Warrants and of Warrant Shares representing an aggregate of 51% or more of the
Warrant Shares, will file with the Securities and Exchange Commission under the
Securities Act, such registration statements and amendments thereto and such
other filings as may be required to permit the public offering and sale of such
Warrant Shares in compliance with the Securities Act. The Company shall be
required to register Warrant Shares no more than once pursuant to this Section
5.01(a).
(b) To the extent a registration statement covering the Warrant Shares
is not available, the Company will permit, subject to the last sentence of this
Section 5.01(b), any Warrant Shares to be included, at the request of the
holders of such Warrant Shares, in any registration of securities of the Company
(other than shares of Common Stock for an employees' option or stock purchase
plan or shares registered on Form S-4 in connection with an arms-length merger
transaction) under a registration statement filed by the Company under the
Securities Act at any time prior to the close of business on the fifth
anniversary of the Effective Date. The Company shall provide written notice to
the record holders of all Warrants and Warrant Shares at least 30 days prior to
the filing of any such registration statement sent by registered mail to the
address of record of each such holder. If the offering pursuant to any
registration statement described in this Section 5.01(b) is made through
underwriters and the managing underwriter of such offering shall advise the
Company in writing that, in its opinion, the distribution of the number of
Warrant Shares requested to be included in the registration concurrently with
the securities being registered by the Company would materially and adversely
affect the distribution of such securities by the Company, then all selling
security holders (but not the Company) shall reduce the amount of securities
each intended to distribute through such offering on a pro rata basis.
(c) Each such holder shall pay the underwriting discount attributable
to such holder's Warrant Shares, any transfer tax payable with respect thereto
and the fees and expenses of such holder's counsel. All other expenses of
registration under Section 5.01(a), or Section 5.01(b) shall be borne by the
Company.
(d) If the offering pursuant to any registration statement provided
for herein is made through underwriters, the Company will enter into an
underwriting agreement in customary form and indemnify, in customary form, such
underwriters and each person who controls any such underwriter within the
meaning of the Securities Act. Such underwriting agreement shall contain
provisions for the indemnification of the Company in customary form, provided
that the aggregate amount that may be recovered from any such underwriter
pursuant to such provisions shall be limited to the total price at which the
Warrant Shares purchased by any such underwriter under such underwriting
agreement were offered to the public.
Section 5.02 ENFORCEMENT OF WARRANT RIGHTS. All rights of action are
vested in the respective Warrantholders. Any holder of any Warrant, in his own
behalf and for his own benefit, may enforce, and may institute and maintain any
suit, action or proceeding against the Company suitable to enforce, or otherwise
in respect of, his rights to enforce the Company's obligations under the Warrant
Agreement and the Warrants.
Section 5.03 SUPPLEMENTS AND AMENDMENTS. (a) With the consent of the
registered holders of at least 51% in number of the Warrants at the time
outstanding, the Company at any time and from time to time by supplemental
agreement or amendment may add any provisions to or change in any manner or
eliminate any of the provisions of this Agreement or of any supplemental
agreement or modify in any manner the rights and obligations of the
Warrantholders and of the Company; provided, however, that no such supplemental
agreement or amendment, without the consent of the registered holder of each
outstanding Warrant affected thereby, shall:
(i) alter the provisions of this Agreement so as to affect
adversely the terms upon which the Warrants are exercisable or may be
redeemed; or
(ii) reduce the number of Warrants outstanding the consent of
whose holders is required for any such supplemental agreement or
amendment.
Section 5.04 COVENANT AS TO NO INVESTMENT COMPANY STATUS. The Company
shall use its best efforts, until November 28, 2006, to maintain its status that
it is not an "investment company" or an entity "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940.
Section 5.05 Successors and Assigns. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrantholders shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 5.06 NOTICES. Any notice or demand authorized by this
Agreement to be given or made by the holder of any Warrant to or on the Company
shall be sufficiently given or made if sent by mail first-class, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Representative), as follows:
Ribozyme Pharmaceuticals, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President & CEO
Fax: 000-000-0000
Any notice or demand authorized by this Agreement to be given or made
by the holder of any Warrant or by the Company to or on the Representative shall
be sufficiently given or made if sent by mail first-class, postage prepaid,
addressed (until another address is filed in writing by the Representative with
the Company), as follows:
[Holder Address]
Attention:
Fax:
Any notice or demand authorized by this Agreement to be given or made
to the holder of any Warrants shall be sufficiently given or made if sent by
first-class mail, postage prepaid to the last address of such holder as it shall
appear on the Warrant Register, or by facsimile transmission with telephone
confirmation.
Section 5.07 APPLICABLE LAW. The validity, interpretation and
performance of this Agreement and of the Warrant Certificate shall be governed
by the law of the State of New York without giving effect to the principles of
conflicts of laws thereof.
Section 5.08 BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
expressed and nothing that may be implied from any of the provisions hereof is
intended, or shall be construed, to confer upon, or give to, any person or
corporation other than the parties hereto and the holders of the Warrants any
right, remedy or claim under or by reason of this Agreement or of any covenant,
condition, stipulation, promise or agreement hereof, and all covenants,
conditions, stipulations, promises and agreements in this Agreement contained
shall be for the sole and exclusive benefit of the parties hereto and their
successors and of the holders of the Warrants.
Section 5.09 REGISTERED WARRANTHOLDERS. Prior to due presentment for
registration of transfer, the Company may deem and treat the person in whose
name any Warrants are registered in the Warrant Register as the absolute owner
thereof for all purposes whatever (notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Company) and the Company
shall not be affected by any notice to the contrary or be bound to recognize any
equitable or other claim to or interest in any Warrants on the part of any other
person and shall not be liable for any registration of transfer of Warrants that
are registered or to be registered in the name of a fiduciary or the nominee of
a fiduciary unless made with actual knowledge that a fiduciary or nominee is
committing a breach of trust in requesting such registration of transfer or with
such knowledge of such facts that its participation therein amounts to bad
faith. The terms "Warrantholder" and "holder of any "Warrants" and all other
similar terms used herein shall mean such person in whose name Warrants are
registered in the Warrant Register.
Section 5.10 INSPECTION OF AGREEMENT. A copy of this Agreement shall
be available at all reasonable times for inspection by any Warrantholder at the
principal office of the Company. The Company may require any such Warrantholder
to submit his Warrant Certificate for inspection by it before allowing such
Warrantholder to inspect a copy of this Agreement.
Section 5.11 HEADINGS. The Article and Section headings herein are for
convenience only and are not a part of this Agreement and shall not affect the
interpretation thereof.
Section 5.12 COUNTERPARTS. The Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
RIBOZYME PHARMACEUTICALS, INC.
By:
-------------------------------------
Name:
Title:
HOLDER
By:
-------------------------------------
Name:
Title:
EXHIBIT A
WARRANT CERTIFICATE
No. W- _______ Warrants
WARRANTS TO PURCHASE SHARES OF COMMON STOCK
OF RIBOZYME PHARMACEUTICALS, INC.
Ribozyme Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), for value received, hereby certifies that the Holder or its
registered assigns, is the owner of the number of Warrants, set forth above,
each of which represents the right, subject to the terms and conditions hereof
and of the Warrant Agreement hereafter referred to (the "Warrant Agreement"), to
purchase from the Company at any time, or from time to time, following the
original issuance of the Warrants to the close of business on the five year
anniversary of the date of original issuance (or, if such date is not a Business
Day (as defined below), the first following Business Day) (the "Exercise
Period"), the number of shares of Common Stock, par value $.01 per share, of the
Company (the "Common Stock") described in the Warrant Agreement (each share of
Common Stock issuable upon exercise of a Warrant is referred to as a "Warrant
Share"). Subject to the terms and conditions of the Warrant Agreement, the
exercise price per Warrant represented by this Warrant Certificate shall be
$5.00 per share, adjusted as provided in Article III of the Warrant Agreement,
payable in full as to each Warrant exercised at the time of purchase.
This Warrant may be exercised in whole or in part at any time or from
time to time during the Exercise Period. The portion of any Warrant not
exercised during the Exercise Period shall become void, and all rights hereunder
and all rights in respect hereof and under the Warrant Agreement shall cease at
the end of the Exercise Period.
Each such purchase of Warrant Shares shall be made, and shall be
deemed effective for the purpose of determining the date of exercise, only upon
surrender hereof to the Company at the principal office of the Company, with the
form of Election to Exercise on the reverse hereof duly filled in and signed,
and upon payment in full to the Company of the Exercise Price (i) in cash or
(ii) by certified or official bank check or (iii) by any combination of the
foregoing, all as provided in the Warrant Agreement and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement, or (iv)
under the limited circumstances identified in Section 2.03 of the Warrant
Agreement (as defined below) by the surrender of the right to receive a portion
of the number of Warrant Shares as described in Section 2.03.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of November 28, 2001 (the "Warrant Agreement"),
between the Company and [HOLDER], and is subject to the terms and provisions of
the Warrant Agreement, which terms and provisions are hereby incorporated by
reference herein and made a part hereof. Copies of the Warrant Agreement are
available for inspection by the registered holder at the principal office of the
Company.
The Company shall not be required upon the exercise of the Warrants
represented hereby to issue fractions of Warrant Shares or to distribute share
certificates that evidence fractional Warrant Shares. Every holder of this
Warrant Certificate expressly waives its right to receive any fraction of a
Warrant Share or a share certificate representing a fraction of a Warrant Share.
Fractional Warrant Shares that otherwise would be issuable in respect of such
exercise shall be paid in cash as provided in the Warrant Agreement, and the
number of Warrant Shares issuable to such Warrantholder shall be rounded down to
the next nearest whole number. If such Warrant Certificate shall not have been
exercised in full, the Company will issue to such Warrantholder a new Warrant
Certificate exercisable for the number of shares of Common Stock as to which
such Warrant shall not have been exercised.
This Warrant Certificate may be exchanged either separately or in
combination with other Warrant Certificates at the principal office of the
Company for new Warrant Certificates representing the same aggregate number of
Warrants as were evidenced by the Warrant Certificate or Warrant Certificates
exchanged, upon surrender of this Warrant Certificate and upon compliance with
and subject to the conditions set forth herein and in the Warrant Agreement.
This Warrant Certificate is transferable (subject to restrictions set
forth in the Warrant Agreement) at the principal office of the Company by the
registered holder hereof in person or by his attorney duly authorized in
writing, upon (i) surrender of this Warrant Certificate and (ii) upon compliance
with and subject to the conditions set forth herein and in the Warrant
Agreement. Upon any such transfer, a new Warrant Certificate or new Warrant
Certificates of different denominations, representing in the aggregate a like
number of Warrants, will be issued to the transferee. Every holder of Warrants,
by accepting this Warrant Certificate, consents and agrees with the Company and
with every subsequent holder of this Warrant Certificate that until due
presentation for the registration of transfer of this Warrant Certificate on the
Warrant Register maintained by the Company, the Company may deem and treat the
person in whose name this Warrant Certificate is registered as the absolute and
lawful owner for all purposes whatsoever and the Company shall not be affected
by any notice to the contrary.
Nothing contained in the Warrant Agreement or in this Warrant
Certificate shall be construed as conferring on the holder of any Warrants or
his transferee any rights whatsoever as a shareholder of the Company.
The Warrant Agreement and each Warrant Certificate, including this
Warrant Certificate, shall be deemed a contract made under the laws of the State
of New York and for all purposes shall be construed in accordance with the laws
of the State of New York without giving effect to the principles of conflicts of
law thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed.
Dated: November 28, 2001
RIBOZYME PHARMACEUTICALS, INC.
By:
------------------------------
ELECTION TO EXERCISE
(To be executed upon exercise of Warrant)
TO RIBOZYME PHARMACEUTICALS, INC.:
The undersigned hereby elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
____________ shares of Common Stock, as provided for therein, and tenders
herewith payment of the purchase price in full in the form of cash or a
certified or official bank check (or combination thereof) in the amount of
$_______________________.
[The undersigned hereby elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
________ shares of Common Stock, as provided for therein, and we are tendering
payment by surrendering our right to receive _______ Warrant Shares.]
Please issue a certificate or certificates for such shares of Common
Stock in the name of:
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE:
__________________________________
Name _____________________________________
Address ___________________________________
Signature __________________________________
____________________________________________
Note: The above signature should correspond
exactly with the name on the face of this
Warrant Certificate or with the name of
assignee appearing in the assignment form
below.
Dated: _________________, ______
ASSIGNMENT
(To be executed only upon assignment of Warrant Certificate)
For value received, __________________________ hereby sells, assigns
and transfer unto ___________________________ the within Warrant Certificate,
together with all right, title and interest therein, and does hereby irrevocably
constitute and appoint ______________________ attorney, to transfer said Warrant
Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Dated: ________________, ______
____________________________________
Note: The above signature should
correspond exactly with the name on the
face of this Warrant Certificate.
