EXHIBIT 4.3
THIS WARRANT AND ANY SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT COVERING THIS WARRANT UNDER SAID ACT OR AN EXEMPTION FROM
REGISTRATION UNDER SAID ACT.
VOID AFTER 5:00 P.M. PACIFIC TIME ON DECEMBER 19, 2004
("EXPIRATION DATE").
_______________________________________________________
AVI BIOPHARMA, INC.
WARRANT TO PURCHASE ______ SHARES OF
COMMON STOCK, PAR VALUE $.0001 PER SHARE
This is to certify that, for VALUE RECEIVED, _____________
("Warrantholder"), is entitled to purchase, subject to the provisions of this
Warrant, from AVI BioPharma, Inc., a corporation organized under the laws of
Oregon ("Company"), at any time not later than 5:00 P.M., Pacific time, on
the Expiration Date, at an exercise price per share equal to $4.025 (the
exercise price in effect from time to time hereafter being herein called the
"Warrant Price") ______ shares ("Warrant Shares") of Common Stock, par value
$.0001 per share ("Common Stock"). The number of Warrant Shares purchasable
upon exercise of this Warrant and the Warrant Price shall be subject to
adjustment from time to time as described herein.
This Warrant has been issued pursuant to the terms of the Purchase
Agreement dated on or about the date hereof between the Company and the
Warrantholder. Capitalized terms used herein and not defined shall have the
meaning specified in the Purchase Agreement.
Section 1. REGISTRATION. The Company shall maintain books for
the transfer and registration of the Warrant. Upon the initial issuance of
the Warrant, the Company shall issue and register the Warrant in the name of
the Warrantholder.
Section 2. TRANSFERS. As provided herein, the Warrant may be
transferred only pursuant to a registration statement filed under the
Securities Act of 1933, as amended ("Securities Act") or an exemption from
registration thereunder. Subject to such restrictions, the Company shall
transfer from time to time, the Warrant, upon the books to be maintained by
the Company for that purpose, upon surrender thereof for transfer properly
endorsed or accompanied by appropriate instructions for transfer upon any
such transfer, and a new Warrant shall be issued to the transferee and the
surrendered Warrant shall be canceled by the Company.
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Section 3. EXERCISE OF WARRANT. Subject to the provisions
hereof, the Warrantholder may exercise the Warrant in whole or in part at any
time upon surrender of the Warrant, together with delivery of the duly
executed Warrant exercise form attached hereto (the "Exercise Agreement"), to
the Company during normal business hours on any business day at the Company's
principal executive offices (or such other office or agency of the Company as
it may designate by notice to the holder hereof), and upon (i) payment to the
Company in cash, by certified or official bank check or by wire transfer for
the account of the Company of the Warrant Price for the Warrant Shares
specified in the Exercise Agreement or (ii) delivery to the Company of a
written notice of an election to effect a "Cashless Exercise" (as defined
below) for the Warrant Shares specified in the Exercise Agreement. The
Warrant Shares so purchased shall be deemed to be issued to the holder hereof
or such holder's designee, as the record owner of such shares, as of the
close of business on the date on which this Warrant shall have been
surrendered (or evidence of loss, theft or destruction thereof), the
completed Exercise Agreement shall have been delivered, and payment shall
have been made for such shares as set forth above. Certificates for the
Warrant Shares so purchased, representing the aggregate number of shares
specified in the Exercise Agreement, shall be delivered to the holder hereof
within a reasonable time, not exceeding two (2) business days, after this
Warrant shall have been so exercised. The certificates so delivered shall be
in such denominations as may be requested by the holder hereof and shall be
registered in the name of such holder or such other name as shall be
designated by such holder. If this Warrant shall have been exercised only in
part, then, unless this Warrant has expired, the Company shall, at its
expense, at the time of delivery of such certificates, deliver to the holder
a new Warrant representing the number of shares with respect to which this
Warrant shall not then have been exercised.
To effect a Cashless Exercise, the holder shall submit to the
Company with the Exercise Agreement, written notice of the holder's intention
to do so, including a calculation of the number of shares of Common Stock to
be issued upon such exercise in accordance with the terms hereof. In the
event of a Cashless Exercise, in lieu of paying the Warrant Price in cash,
the holder shall surrender this Warrant for that number of shares of Common
Stock determined by multiplying the number of Warrant Shares to which it
would otherwise be entitled by a fraction, the numerator of which shall be
the difference between the then current Market Price per share of the Common
Stock and the Warrant Price, and the denominator of which shall be the then
current Market Price per share of the Common Stock. For this purpose, the
"Market Price" of the Common Stock shall be the average of the closing bid
prices of the Common Stock as reported by the Nasdaq Stock Market for the
three (3) trading days immediately preceding the exercise date.
Section 4. COMPLIANCE WITH THE SECURITIES ACT. Neither this
Warrant nor the Common Stock issued upon exercise hereof nor any other
security issued or issuable upon exercise of this Warrant may be offered or
sold except as provided in this agreement and in conformity with the
Securities Act, and then only against receipt of an agreement of such person
to whom such offer of sale is made to comply with the provisions of this
Section 4 with respect to any resale or other disposition of such security.
The Company may cause the legend set forth on the first page of this Warrant
to be set forth on each Warrant or similar legend on any security issued or
issuable upon exercise of this Warrant until the
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Warrant Shares have been registered for resale under the Registration Rights
Agreement or until Rule 144 is available, unless counsel for the Company is
of the opinion as to any such security that such legend is unnecessary.
Section 5. PAYMENT OF TAXES. The Company will pay any
documentary stamp taxes attributable to the initial issuance of Warrant
Shares issuable upon the exercise of the Warrant; provided, however, that the
Company shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issue or delivery of any certificates
for Warrant Shares in a name other than that of the registered holder of the
Warrant in respect of which such shares are issued, and in such case, the
Company shall not be required to issue or deliver any certificate for Warrant
Shares or any Warrant until the person requesting the same has paid to the
Company the amount of such tax or has established to the Company's
satisfaction that such tax has been paid. The holder shall be responsible
for income taxes due under federal or state law, if any such tax is due.
Section 6. MUTILATED OR MISSING WARRANTS. In case the Warrant
shall be mutilated, lost, stolen, or destroyed, the Company shall issue in
exchange and substitution of and upon cancellation of the mutilated Warrant,
or in lieu of and substitution for the Warrant lost, stolen or destroyed, a
new Warrant of like tenor and for the purchase of a like number of Warrant
Shares, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction of the Warrant, and with respect
to a lost, stolen or destroyed Warrant, reasonable indemnity or bond, if
requested by the Company.
Section 7. RESERVATION OF COMMON STOCK. The Company hereby
represents and warrants that there have been reserved, and the Company shall
at all applicable times keep reserved, out of the authorized and unissued
Common Stock, a number of shares sufficient to provide for the exercise of
the rights of purchase represented by the Warrant, and the transfer agent for
the Common Stock ("Transfer Agent"), and every subsequent transfer agent for
the Common Stock or other shares of the Company's capital stock issuable upon
the exercise of any of the right of purchase aforesaid, shall be irrevocably
authorized and directed at all times to reserve such number of authorized and
unissued shares of Common Stock as shall be requisite for such purpose. The
Company agrees that all Warrant Shares issued upon exercise of the Warrant
shall be, at the time of delivery of the certificates for such Warrant
Shares, duly authorized, validly issued, fully paid and non-assessable shares
of Common Stock of the Company. The Company will keep a conformed copy of
this Warrant on file with the Transfer Agent and with every subsequent
transfer agent for the Common Stock or other shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrant. The Company will supply from time to time the Transfer Agent with
duly executed stock certificates required to honor the outstanding Warrant.
Section 8. WARRANT PRICE. The Warrant Price, subject to
adjustment as provided in Section 9, shall, if payment is made in cash or by
certified check, be payable in lawful money of the United States of America.
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Section 9. ADJUSTMENTS. Subject and pursuant to the provisions
of this Section 9, the Warrant Price and number of Warrant Shares subject to
this Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall at any time or from time to time while
the Warrant is outstanding, pay a dividend or make a distribution on its
Common Stock in shares of Common Stock, subdivide its outstanding shares of
Common Stock into a greater number of shares or combine its outstanding
shares into a smaller number of shares or issue by reclassification of its
outstanding shares of Common Stock any shares of its capital stock (including
any such reclassification in connection with a consolidation or merger in
which the Company is the continuing corporation), then the number of Warrant
Shares purchasable upon exercise of the Warrant and the Warrant Price in
effect immediately prior to the date upon which such change shall become
effective, shall be adjusted by the Company so that the Warrantholder
thereafter exercising the Warrant shall be entitled to receive the number of
shares of Common Stock or other capital stock which the Warrantholder would
have received if the Warrant had been exercised immediately prior to such
event. Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) If any capital reorganization, reclassification of the capital
stock of the Company, consolidation or merger of the Company with another
corporation, or sale, transfer or other disposition of all or substantially
all of the Company's properties to another corporation shall be effected,
then, as a condition of such reorganization, reclassification, consolidation,
merger, sale, transfer or other disposition, lawful and adequate provision
shall be made whereby each Warrantholder shall thereafter have the right to
purchase and receive upon the basis and upon the terms and conditions herein
specified and in lieu of the Warrant Shares immediately theretofore issuable
upon exercise of the Warrant, such shares of stock, securities or properties
as may be issuable or payable with respect to or in exchange for a number of
outstanding Warrant Shares equal to the number of Warrant Shares immediately
theretofore issuable upon exercise of the Warrant, had such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition
not taken place, and in any such case appropriate provision shall be made
with respect to the rights and interests of each Warrantholder to the end
that the provisions hereof (including, without limitations, provision for
adjustment of the Warrant Price) shall thereafter be applicable, as nearly
equivalent as may be practicable in relation to any shares of stock,
securities or properties thereafter deliverable upon the exercise thereof.
The Company shall not effect any such consolidation, merger, sale, transfer
or other disposition 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 or otherwise
acquiring such assets or other appropriate corporation or entity shall
assume, by written instrument executed and delivered to the Company, the
obligation to deliver to the holder of the Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to purchase and the other obligations under this
Warrant. The provisions of this paragraph (b) shall similarly apply to
successive reorganizations, reclassifications consolidations, mergers, sales,
transfers or other dispositions.
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(c) In case the Company shall fix a record date for the making of
a distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or assets
(other than cash dividends or cash distributions payable out of consolidated
earnings or earned surplus or dividends or distributions referred to in
Section 9(a)), or subscription rights or warrants, the Warrant Price to be in
effect after such record date shall be determined by multiplying the Warrant
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the total number of shares of Common Stock
outstanding multiplied by the Market Price per share of Common Stock (as
determined pursuant to Section 3), less the fair market value (as determined
by the Company's Board of Directors in good faith) of said assets or
evidences of indebtedness so distributed, or of such subscription rights or
warrants, and the denominator of which shall be the total number of shares of
Common Stock outstanding multiplied by such current Market Price per share of
Common Stock. Such adjustment shall be made successively whenever such a
record date is fixed.
(d) If the Company shall at any time or from time to time after
the date of issuance hereof issue or sell in a financing transaction (which
shall not include any sales or issuances of Common Stock after the date
hereof pursuant to contractual obligations in effect on the date hereof), (A)
any shares of Common Stock for a Per Share Selling Price (as defined in
Section 7.1(b)(i) of the Purchase Agreement) less than the Warrant Price (as
defined above) on the date of such issuance or (B) any securities convertible
into shares of Common Stock ("Convertible Securities") for which the Per
Share Selling Price of the Common Stock is less than the Warrant Price (as
defined above) on the date of such issuance, then the Warrant Price shall be
reset (if it would result in a reduction of such price) to a price equal to
115% of such per share consideration, or conversion or exercise price. The
number of Warrant Shares shall be proportionally increased. Such adjustments
shall be made successively whenever such sales are made.
(e) An adjustment shall become effective immediately after the
record date in the case of each dividend or distribution and immediately
after the effective date of each other event which requires an adjustment.
(f) In the event that, as a result of an adjustment made pursuant
to Section 9, the holder of the Warrant shall become entitled to receive any
shares of capital stock of the Company other than shares of Common Stock, the
number of such other shares so receivable upon exercise of the Warrant shall
be subject thereafter to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
the Warrant Shares contained in this Warrant.
Section 10. FRACTIONAL INTEREST. The Company shall not be
required to issue fractions of Warrant Shares upon the exercise of the
Warrant. If any fraction of a Warrant Share would, except for the provisions
of this Section, be issuable upon the exercise of the Warrant (or specified
portions thereof), the Company shall round such calculation to the nearest
whole number and disregard the fraction.
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Section 11. BENEFITS. Nothing in this Warrant shall be
construed to give any person, firm or corporation (other than the Company and
the Warrantholder) any legal or equitable right, remedy or claim, it being
agreed that this Warrant shall be for the sole and exclusive benefit of the
Company and the Warrantholder.
Section 12. NOTICES TO WARRANTHOLDER. Upon the happening of any
event requiring an adjustment of the Warrant Price, the Company shall
forthwith give written notice thereof to the Warrantholder at the address
appearing in the records of the Company, stating the adjusted Warrant Price
and the adjusted number of Warrant Shares resulting from such event and
setting forth in reasonable detail the method of calculation and the facts
upon which such calculation is based. The Company's independent certified
public accountants shall make the calculations of any such adjustments.
Failure to give such notice to the Warrantholder or any defect therein shall
not affect the legality or validity of the subject adjustment.
Section 13. IDENTITY OF TRANSFER AGENT. The Transfer Agent for
the Common Stock is ChaseMellon Shareholder Services LLC. Forthwith upon the
appointment of any subsequent transfer agent for the Common Stock or other
shares of the Company's capital stock issuable upon the exercise of the
rights of purchase represented by the Warrant, the Company will fax to the
Warrantholder a statement setting forth the name and address of such transfer
agent.
Section 14. NOTICES. Any notice pursuant hereto to be given or
made by the Warrantholder to or on the Company shall be sufficiently given or
made personally or if sent by an internationally recognized courier by next
day or two day delivery service, addressed as follows:
AVI BioPharma, Inc.
Xxx XX Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
Chief Financial Officer
or such other address as the Company may specify in writing by notice to the
Warrantholder complying as to delivery with the terms of this Section 14.
Any notice pursuant hereto to be given or made by the Company to or
on the Warrantholder shall be sufficiently given or made if personally
delivered or if sent by an internationally recognized courier service by
overnight or two-day service, to the address set forth on the books of the
Company or, as to each of the Company and the Warrantholder, at such other
address as shall be designated by such party by written notice to the other
party complying as to delivery with the terms of this Section 14.
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All such notices, requests, demands, directions and other
communications shall, when sent by courier, be effective two (2) days after
delivery to such courier as provided and addressed as aforesaid.
Section 15. REGISTRATION RIGHTS. The initial holder of this
Warrant is entitled to the benefit of certain registration rights in respect
of the Warrant Shares as provided in the Registration Rights Agreement.
Section 16. SUCCESSORS. All the covenants and provisions hereof
by or for the benefit of the Investor shall bind and inure to the benefit of
its respective successors and assigns hereunder.
Section 17. GOVERNING LAW. This Warrant shall be deemed to be 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 said State.
Section 18. 9.9% LIMITATION.. Notwithstanding anything to the
contrary contained herein, the number of shares of Common Stock that may be
acquired by the holder upon exercise pursuant to the terms hereof shall not
exceed a number that, when added to the total number of shares of Common
Stock deemed beneficially owned by such holder (other than by virtue of the
ownership of securities or rights to acquire securities that have limitations
on the Holder's right to convert, exercise or purchase similar to the
limitation set forth herein), together with all shares of Common Stock deemed
beneficially owned by the holder's "affiliates" (as defined Rule 144 of the
Act) that would be aggregated for purposes of determining whether a group
under Section 13(d) of the Securities Exchange Act of 1934, as amended,
exists, would exceed 9.99% of the total issued and outstanding shares of the
Company's Common Stock (the "Restricted Ownership Percentage"); provided that
(w) each holder shall have the right at any time and from time to time to
reduce its Restricted Ownership Percentage immediately upon notice to the
Company and (x) each holder shall have the right at any time and from time to
time, to increase its Restricted Ownership Percentage immediately (subject to
waiver) in the event of a pending or announced change of control transaction
(including without limitation a transaction that would result in a transfer
of more than 50% of the Company's voting power or equity, or a transaction
that would result in a person or "group" being deemed the beneficial owner of
50% or more of the Company's voting power or equity). This limitation may not
be amended except with the consent of the stockholders of the Company, and
they are intended third-party beneficiaries of this provision.
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IN WITNESS WHEREOF, the parties hereto have caused this Warrant to be duly
executed, as of the day and year first above written.
AVI BIOPHARMA, INC.
By:___________________________
Name:
Title:
Attest:
______________________________
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