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Exhibit 4.16
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SECURITIES
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE
PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT
NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL EXECUTIVE OFFICE.
Issued: September 20, 1995 CSW-10
RIBOGENE, INC.
COMMON STOCK PURCHASE WARRANT
1. NUMBER AND PRICE OF SHARES SUBJECT TO WARRANT.
(a) Subject to the terms and conditions herein set forth,
XXXXXX XXXXXXXXX, PH.D. (the "Purchaser") is entitled to purchase from
RiboGene, Inc., a California corporation (the "Company"), at any time after the
date hereof and on or before (i) the date three (3) years from the date of this
Warrant, or (ii) the closing of the Company's sale of all or substantially all
of its assets or the acquisition of the Company by another entity by means of
merger or other transaction as a result of which shareholders of the Company
immediately prior to such acquisition possess a minority of the voting power of
the acquiring entity immediately following such acquisition, or (iii) the
closing of the initial public offering of the Company's Common Stock registered
under the Securities Act of 1933, as amended, with a public offering price of
least $5.00 per share of Common Stock (as adjusted for stock splits,
combinations and the like), up to 1,750 shares (which number of shares is
subject to adjustment as described below) of fully paid and non-assessable
Common Stock of the Company upon surrender hereof, upon either (1) payment of
the purchase price at said office in cash, by check or by wire transfer, (2)
the cancellation of any present or future indebtedness from the Company to the
holder hereof in a dollar amount equal to the purchase price of the Common
Stock for which the consideration is being given, or (3) tender of a notice as
provided in the net issue exercise provisions of Section 6(b) hereof.
(b) Subject to adjustment as hereinafter provided, the
purchase price of one share of Common Stock (or such securities as may be
substituted for one share of Common Stock pursuant to the provisions
hereinafter set forth) shall be $2.00. The purchase price of one share of
Common Stock (or such securities as may be substituted for one share of Common
Stock pursuant to the provisions hereinafter set forth) payable from time to
time upon the exercise of this Warrant (whether such price be the price
specified above or an adjusted price determined as hereinafter provided) is
referred to herein as the "WARRANT PRICE."
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2. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number
and kind of securities issuable upon the exercise of this Warrant shall be
subject to adjustment from time to time upon the happening of certain events as
follows:
(a) ADJUSTMENT FOR DIVIDENDS IN STOCK OR OTHER SECURITIES
OR PROPERTY. In case at any time or from time to time on or after the date
hereof the holders of the Common Stock of the Company (or any shares of stock
or other securities at the time receivable upon the exercise of this Warrant)
shall have received, or, on or after the record date fixed for the
determination of eligible stockholders, shall have become entitled to receive,
without payment therefor, other or additional stock or other securities or
property (other than cash) of the Company by way of dividend, then and in each
case, the holder of this Warrant shall, upon the exercise hereof, be entitled
to receive, in addition to the number of shares of Common Stock receivable
thereupon, and without payment of any additional consideration therefor, the
amount of such other or additional stock or other securities or property (other
than cash) of the Company which such holder would hold on the date of such
exercise had it been the holder of record of such Common Stock on the date
hereof and had thereafter, during the period from the date hereof to and
including the date of such exercise, retained such shares and/or all other
additional stock available by it as aforesaid during such period, giving effect
to all adjustments called for during such period elsewhere in this Section 2.
(b) ADJUSTMENT FOR RECLASSIFICATION, REORGANIZATION OR MERGER. In
case of any reclassification or change of the outstanding securities of the
Company or of any reorganization of the Company (or any other corporation the
stock or securities of which are at the time receivable upon the exercise of
this Warrant) or any similar corporate reorganization on or after the date
hereof, then and in each such case the holder of this Warrant, upon the
exercise hereof at any time after the consummation of such reclassification,
change, reorganization, merger or conveyance, shall be entitled to receive, in
lieu of the stock or other securities and property receivable upon the exercise
hereof prior to such consummation, the stock or other securities or property to
which such holder would have been entitled upon such consummation if such
holder had exercised this Warrant immediately prior thereto, all subject to
further adjustment as provided elsewhere in this Section 2; and in each such
case, the terms of this Section 2 shall be applicable to the shares of stock or
other securities properly receivable upon the exercise of this Warrant after
such consummation.
(c) STOCK SPLITS AND REVERSE STOCK SPLITS. If at any time on or
after the date hereof the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall thereby be proportionately reduced
and the number of shares receivable upon exercise of the Warrant shall thereby
be proportionately increased; and, conversely, if at any time on or after the
date hereof the outstanding number of shares of Common Stock shall be combined
into a smaller number of shares, the Warrant Price in effect immediately prior
to such combination shall thereby be proportionately increased and the number
of shares receivable upon exercise of this Warrant shall thereby be
proportionately decreased.
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(d) ADJUSTMENT FOR QUALIFIED FINANCING. In the event that
(a) the Company consummates a transaction or series of related transactions
pursuant to which the Company sells equity securities with an aggregate
purchase price of not less than $8,000,000 (which shall include purchase price
paid via the conversion of outstanding indebtedness) (a "Qualified Financing"),
(b) the purchase price for each share or other unit of the securities sold in
the Qualified Financing is less than $2.00 (as adjusted for subsequent stock
splits, stock dividends and recapitalizations, the "Financing Price"), and (c)
the Warrant Price then in effect is greater than the Financing Price, then the
Warrant Price shall be adjusted such that it equals the Financing Price. Upon
adjustment of the Warrant Price pursuant to this Section 2(d), the number of
shares issuable upon exercise hereof shall be adjusted such that the aggregate
price for all of such shares, as adjusted, equals the initial aggregate
purchase price for the shares originally purchasable hereunder.
3. NO FRACTIONAL SHARES. No fractional shares of Common Stock
will be issued in connection with any exercise hereunder. In lieu of any
fractional shares which would otherwise be issuable, the Company shall pay cash
equal to the product of such fraction multiplied by the fair market value of
one share of Common Stock on the date of exercise, as determined in good faith
by the Company's Board of Directors.
4. NO STOCKHOLDER RIGHTS. This Warrant represents only the right
to purchase shares of Common Stock of the Company and shall not otherwise
entitle its holder to any of the rights of a stockholder of the Company.
5. RESERVATION OF STOCK. The Company covenants that during the
period this Warrant is exercisable, the Company will reserve from its
authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of Common Stock upon the exercise of this Warrant. The Company
agrees that its issuance of this Warrant shall constitute full authority to its
officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Common Stock upon
the exercise of this Warrant.
6. EXERCISE OF WARRANT.
(A) METHOD OF EXERCISE. This Warrant may be exercised by
the holder hereof, in whole or in part and from time to time, by the surrender
of this Warrant at the principal office of the Company, accompanied by payment
to the Company, by check, of an amount equal to the then applicable Warrant
Price per share multiplied by the number of shares of Common Stock then being
purchased. This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
such shares of record as of the close of business on such date. As promptly as
practicable on or after such date and in any event within five (5) business
days thereafter, the Company at its expense shall issue and deliver to the
person or persons entitled to receive the same a certificate or certificates
for the number of full shares of Common Stock issuable upon such exercise,
together with cash in lieu of any fraction of a share as provided
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above, and, unless this Warrant has been fully exercised or has expired, a new
Warrant representing the portion of the shares of Common Stock, if any, with
respect to which this Warrant shall not have been exercised, shall also be
issued to the holder hereof. The shares of Common Stock issuable upon exercise
hereof shall, upon their issuance, be fully paid and nonassessable.
(b) NET ISSUE EXERCISE.
(i) In lieu of exercising this Warrant in the
manner provided above in Section 6(a), holder may elect to receive shares equal
to the value of this Warrant (or the portion thereof being cancelled) by
surrender of this Warrant at the principal office of the Company together with
notice of such election in which event the Company shall issue to holder a
number of shares of the Company's Common Stock computed using the following
formula:
X = Y (A - B)
---------
A
Where: X = The number of shares of Common Stock to be
issued to holder.
Y = The number of shares of Common Stock
purchasable under this Warrant (at the date of
such calculation).
A = The fair market value of one share of the
Company's Common Stock (at the date of such
calculation).
B = The Warrant Price (as adjusted to the date of
such calculation).
(ii) For purposes of this Section 6(b), fair market
value of the Company's Common Stock shall mean the average of the closing bid
and asked prices of the Company's Common Stock quoted in the Over-The-Counter
Market Summary or the closing price quoted on any exchange on which the Common
Stock is listed, whichever is applicable, as published in the Western Edition
of THE WALL STREET JOURNAL for the ten (10) trading days prior to the date of
determination of fair market value. If the Common Stock is not traded
Over-The-Counter or on an exchange, the fair market value shall be the price
per share which the Company could obtain from a willing buyer for the shares
sold by the Company from authorized but unissued shares, as such price shall be
agreed by the Company and the holder.
7. CERTIFICATE OF ADJUSTMENT. Whenever the Warrant Price or number
or type of securities issuable upon exercise of this Warrant is adjusted, as
herein provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company setting forth the nature of
such adjustment and a brief statement of the facts requiring such adjustment.
8. TRANSFER OF WARRANT. This Warrant may not be transferred by
the Purchaser without the written consent of the Company, which consent will
not be unreasonably withheld.
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9. REPLACEMENT OF WARRANTS. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
any Warrant and, in the case of any such loss, theft or destruction of any
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor.
10. MISCELLANEOUS. This Warrant shall be governed by the laws of
the State of California. The headings in this Warrant are for purposes of
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing signed by
the Company and the registered holder hereof. All notices and other
communications from the Company to the holder of this Warrant shall be mailed
by first class registered or certified mail, postage prepaid, to the address
furnished to the Company in writing by the last holder of this Warrant who
shall have furnished an address to the Company in writing. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provisions.
11. TERMINATION. This Warrant (and the right to purchase
securities upon exercise hereof) shall terminate upon the earliest of (a) the
date three (3) years from the date of this Warrant, or (b) the closing of the
Company's sale of all or substantially all of its assets or the acquisition of
the Company by another entity by means of merger or other transaction as a
result of which shareholders of the Company immediately prior to such
acquisition possess a minority of the voting power of the acquiring entity
immediately following such acquisition, or (c) the closing of the initial
public offering of the Company's Common Stock registered under the Securities
Act of 1933, as amended, with a public offering price of at least $5.00 per
share of Common Stock (as adjusted for stock splits, combinations and the like).
12. NOTICE. The Company shall give Purchaser written notice of any
sale, merger, consolidation or public offering referred to in Section 11 or any
cash dividend declared on the Company's Common Stock at least twenty (20) days
prior to the closing of any such sale, merger, consolidation or public offering
or the record date fixed for the determination of stockholders eligible for
such dividend and shall deliver a copy of the preliminary prospectus with
respect to any such public offering to Purchaser promptly after it becomes
available.
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This Common Stock Purchase Warrant No. CSW-9 is issued as of the 20th
day of September, 1995.
RIBOGENE, INC.
By: /s/ XXXXXXX X. XXXXXX
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Title: Vice President Finance & Administration
Chief Financial Officer
