EXHIBIT 4.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE
LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED,
PLEDGED OR OTHERWISE TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH
TRANSACTION OR SUCH TRANSACTION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
SUCH ACT AND LAWS.
TARGETED GENETICS CORPORATION
COMMON STOCK PURCHASE WARRANT
This certifies that for value received, _____________________, or
registered assigns, is entitled, upon the terms and subject to the conditions
hereinafter set forth, at any time on or after the date hereof (subject to the
provisions of Section 1) and at or prior to 11:59 p.m., Pacific time, on April
17, 2003 (the "Expiration Time"), but not thereafter, to acquire from TARGETED
GENETICS CORPORATION, a Washington corporation (the "Company"), in whole or from
time to time in part, up to a maximum of ______ fully paid and nonassessable
shares of Common Stock ("Warrant Shares") at a purchase price per share (the
"Exercise Price") of $2.00. Such number of shares, type of security and
Exercise Price are subject to adjustment as provided herein, and all references
to "Warrant Shares" and "Exercise Price" herein shall be deemed to include any
such adjustment.
1. EXERCISE OF WARRANT
Subject to the termination provisions of Section 9 hereof, the purchase
rights represented by this Warrant are exercisable by the registered holder
hereof, in whole or in part, at any time and from time to time at or prior to
the Expiration Time by the surrender of this Warrant and the Notice of Exercise
form attached hereto duly executed to the office of the Company at 0000 Xxxxx
Xxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 (or such other office or agency of the
Company as it may designate by notice in writing to the registered holder hereof
at the address of such holder appearing on the books of the Company), and upon
payment of the Exercise Price for the shares thereby purchased (by cash or by
check or bank draft payable to the order of the Company or by cancellation of
indebtedness of the Company to the holder hereof, if any, at the time of
exercise in an amount equal to the purchase price of the shares thereby
purchased); whereupon the holder of this Warrant shall be entitled to receive
from the Company a stock certificate in proper form representing the number of
Warrant Shares so purchased.
2. SECURITIES ACT COMPLIANCE
As a condition of its delivery of the certificates for the Warrant Shares,
the Company may require the registered holder hereof (or the transferee, if any,
of the Warrant Shares in whose name the Warrant Shares are to be registered) to
deliver to the Company, in writing, representations regarding the purchaser's
sophistication, investment intent, acquisition for its own account and such
other matters as are reasonable and customary for purchasers of securities in an
unregistered private offering and the Company may place conspicuously upon each
certificate representing Warrant Shares a legend substantially in the following
form, the terms of which are agreed to by the registered holder hereof
(including any transferee of this Warrant or the Warrant Shares):
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE
STATE SECURITIES LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED,
ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (I) THERE IS
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES,
(II) THIS CORPORATION RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER
OF THESE SECURITIES REASONABLY SATISFACTORY TO THIS CORPORATION STATING
THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, OR (III) THIS
CORPORATION OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION.
3. ISSUANCE OF SHARES; NO FRACTIONAL SHARES OR SCRIP
Certificates for shares purchased hereunder shall be delivered to the
holder hereof within a reasonable time after the date on which this Warrant
shall have been exercised in accordance with the terms hereof. The Company
agrees that the shares so issued shall be, and be deemed to be, issued to such
holder as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been exercised in accordance with the
terms hereof. No fractional shares or scrip representing fractional shares
shall be issued upon the exercise of this Warrant. With respect to any fraction
of a share called for upon the exercise of this Warrant, the Company shall pay
in cash or check to the holder of this Warrant an amount equal to such fraction
multiplied by the difference between (a) the closing sale price, as of the date
immediately preceding the date of exercise of this Warrant, of one share of the
Company's Common Stock as reported on the Nasdaq Stock Market and (b) the
Exercise Price.
4. CHARGES, TAXES AND EXPENSES
Issuance of certificates for Warrant Shares upon the exercise of this
Warrant shall be made without charge to the holder hereof for any issue or
transfer tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be
2
paid by the Company, and such certificates shall be issued in the name of the
holder of this Warrant or in such name or names as may be directed by the holder
of this Warrant; provided, however, that in the event certificates for Warrant
Shares are to be issued in a name other than the name of the holder of this
Warrant, this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the holder hereof.
5. NO RIGHTS AS SHAREHOLDER
This Warrant does not entitle the holder hereof to any voting rights or
other rights as a shareholder of the Company prior to the exercise hereof.
6. EXCHANGE AND REGISTRY OF WARRANT
This Warrant is exchangeable, upon the surrender hereof by the registered
holder at the above-mentioned office or agency of the Company, for a new Warrant
of like tenor and dated as of such exchange. The Company shall maintain at the
above-mentioned office or agency a registry showing the name and address of the
registered holder of this Warrant. This Warrant may be surrendered for
exchange, transfer or exercise, in accordance with its terms and subject to
compliance with applicable laws, at such office or agency of the Company, and
the Company shall be entitled to rely in all respects, prior to written notice
to the contrary, upon such registry.
7. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) upon receipt of indemnity or security reasonably
satisfactory to it, and upon reimbursement to the Company of all reasonable
expenses incidental thereto, and (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will make and deliver a new warrant of
like tenor and dated as of such cancellation, in lieu of this Warrant.
8. SATURDAYS, SUNDAYS AND HOLIDAYS
If the last or appointed day for the taking of any action or the expiration
of any right required or granted herein shall be a Saturday or a Sunday or shall
be a legal holiday, then such action may be taken or such right may be exercised
on the next succeeding day that is not a legal holiday.
9. MERGER, SALE OF ASSETS, ETC.
If at any time the Company merges or consolidates with or into any other
corporation, effects any reorganization, or sells or conveys all or
substantially all of its assets to any other entity, in a transaction in which
the shareholders of the Company immediately before the transaction own
immediately after the transaction less than a majority of the outstanding voting
securities of the entity (or its parent) succeeding to the business of the
Company (each
3
such transaction, a "corporate transaction"), then this Warrant shall thereafter
entitle the holder to acquire such number and kind of securities as would have
been issuable in respect of the Warrant Shares (or other securities which were
subject to the purchase rights under this Warrant immediately prior to such
corporate transaction) as a result of such corporate transaction if this Warrant
had been exercised in full for cash immediately prior to such corporate
transaction. The Exercise Price hereunder shall be adjusted if and to the extent
necessary to reflect such change. In addition, appropriate adjustment (as
determined in good faith by the Company's Board of Directors) shall be made in
the application of the provisions of this Warrant with respect to the rights and
interest of the holder of this Warrant after the corporate transaction to the
end that the provisions of this Warrant shall be applicable after such corporate
transaction, as near as reasonably may be.
10. RECLASSIFICATION, CONVERSION, ETC.
If the Company at any time shall, by reclassification of securities or
otherwise, change the Warrant Shares into the same or a different number of
securities of any class or classes, this Warrant shall thereafter entitle the
holder to acquire such number and kind of securities as would have been issuable
in respect of the Warrant Shares (or other securities which were subject to the
purchase rights under this Warrant immediately prior to such reclassification or
other change) as a result of such change if this Warrant had been exercised in
full for cash immediately prior to such change. The Exercise Price hereunder
shall be adjusted if and to the extent necessary to reflect such change. If the
Warrant Shares or other securities issuable upon exercise hereof are subdivided
or combined into a greater or smaller number of shares of such security, the
number of shares issuable hereunder shall be proportionately increased or
decreased, as the case may be, and the Exercise Price shall be proportionately
decreased or increased, as the case may be, in both cases according to the ratio
which the total number of shares of such security to be outstanding immediately
after such event bears to the total number of shares of such security
outstanding immediately prior to such event. The Company shall give the holder
prompt written notice of any change in the type of securities issuable
hereunder, any adjustment of the Exercise Price for the securities issuable
hereunder, and any increase or decrease in the number of shares issuable
hereunder.
11. REGISTRATION RIGHTS
The Warrant Shares issuable upon exercise or conversion of this Warrant
shall be entitled to the registration rights set forth in that certain Investor
Rights Agreement, dated as of April 17, 1998, between the Company and the
parties listed on Schedule A thereto.
12. REPRESENTATIONS AND WARRANTIES
The Company hereby represents, warrants and covenants to the holder hereof
that:
(a) during the period this Warrant is outstanding, the Company will
reserve from its authorized and unissued Common Stock a sufficient number of
shares to provide for the issuance of Warrant Shares upon the exercise of this
Warrant;
4
(b) the issuance of this Warrant shall constitute full authority to
the Company's officers who are charged with the duty of executing stock
certificates to execute and issue, or cause to be issued, the necessary
certificates for the Warrant Shares issuable upon exercise of this Warrant;
(c) the Company has all requisite legal and corporate power to execute
and deliver this Warrant, to sell and issue the Warrant Shares hereunder and
perform its obligations under the terms of this Warrant; and
(d) the Warrant Shares, when issued in compliance with the provisions
of this Warrant and the Company's Restated Articles of Incorporation and Amended
and Restated Bylaws, will be validly issued, fully paid and nonassessable, and
free of any liens or encumbrances (other than liens or encumbrances created by
or imposed upon the holder of the Warrant Shares), and will be issued in
compliance with all applicable federal and state securities laws.
14. COOPERATION
The Company will not, by amendment of its Restated Articles of
Incorporation or through any reorganization, recapitalization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other 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
Warrant and in the taking of all such reasonable action as may be necessary or
appropriate in order to protect the rights of the holder of the Warrant against
material impairment.
15. GOVERNING LAW
This Warrant shall be governed by and construed in accordance with the laws
of the state of Washington.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its duly authorized officer.
Dated: April 17, 1998
TARGETED GENETICS CORPORATION
By ___________________________
Title ________________________
ACCEPTED: April 17, 1998
_________________________________
[Name of Holder]
5
NOTICE OF EXERCISE
To: Targeted Genetics Corporation
(1) The undersigned hereby elects to purchase __________ shares of Common
Stock of Targeted Genetics Corporation pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price in full, together
with all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
________________________________
(Name)
________________________________
(Address)
(3) The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares.
_________________________________ ____________________________________
(Date) (Signature)
6
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
________________________________________________________________________________
(Please Print)
whose address is _______________________________________________________________
(Please Print)
Dated: _____________________________________________________
Holder's Signature: ________________________________________
Holder's Address: __________________________________________
____________________________________________________________
Guaranteed Signature: __________________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
7
