[EXECUTION COPY]
EXHIBIT 10.2
THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
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OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS VIROPHARMA INCORPORATED RECEIVES AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO IT THAT SUCH OFFER, SALE, PLEDGE OR TRANSFER IS EXEMPT
FROM ANY REGISTRATION OR PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
______________________________________________
VIROPHARMA INCORPORATED
COMMON STOCK PURCHASE WARRANT
_______________________________________________
This certifies that, for good and valuable consideration, ViroPharma
Incorporated, a Delaware corporation (the "Company"), grants to Perseus-Xxxxx
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BioPharmaceutical Fund, LP, a Delaware limited partnership, and its successors
and assigns (the "Warrantholder"), the right to subscribe for and purchase from
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the Company an aggregate of 595,000 validly issued, fully paid and nonassessable
shares (the "Warrant Shares") of the Company's Common Stock, par value $.002 per
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share (the "Common Stock"), at a price per share equal to $9.53, as adjusted
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from time to time in accordance with the provisions of Section 6 (the "Exercise
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Price"), at any time prior to 5:00 p.m., New York City time, on May 5, 2004 (the
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"Expiration Date"), subject to the terms, conditions and adjustments herein set
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forth.
This Warrant is being issued in connection with the issue and sale by
the Company of shares of its Series A Convertible Participating Preferred Stock,
par value $.001 per share, pursuant to the terms of an Investment Agreement,
dated as of May 5, 1999 (the "Investment Agreement"), among the Company and the
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Warrantholder, and is subject to the terms thereof. This Warrant is the
"Warrant" referred to in the Investment Agreement, and the Warrantholder is
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entitled to the rights and subject to the obligations contained in the
Investment Agreement.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed thereto in the Investment Agreement.
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1. Exercise of Warrants.
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1.1 Exercise of Warrant. This Warrant may be exercised, in whole
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or in part, at any time or from time to time prior to the Expiration Date, by
surrendering to the Company at its principal office, or such other location
mutually agreed upon, this Warrant, with an Exercise Form (as defined herein)
duly executed by the Warrantholder and accompanied by payment of the Exercise
Price for the number of shares of Warrant Shares specified in such Exercise
Form.
1.2 Cashless Exercise. At any time after a Change of Control
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(as defined herein) but prior to the Expiration Date, in lieu of the payment of
the Exercise Price, the Warrantholder shall have the right (but not the
obligation) to require the Company to convert this Warrant, in whole or in part,
into shares of Warrant Shares (the "Conversion Right") as provided for in this
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Section 1.2. Upon exercise of the Conversion Right, the Company shall deliver to
the Warrantholder (without payment by the Warrantholder of any of the Exercise
Price) that number of shares of Warrant Shares equal to the quotient obtained by
dividing (x) the value of the Warrant or portion thereof being exercised at the
time the Conversion Right is exercised (determined by subtracting (a) the
aggregate Exercise Price in effect immediately prior to the exercise of the
Conversion Right for the number of shares for which the Warrant is being
exercised from (b) the aggregate Market Price (as defined herein) of the shares
of Warrant Shares issuable upon exercise of the Warrant for the number of shares
for which the Warrant is being exercised immediately prior to the exercise of
the Conversion Right) by (y) the Market Price of one share of Common Stock
immediately prior to the exercise of the Conversion Right. The Conversion Right
may be exercised at any time after a Change of Control but prior to the
Expiration Date by surrendering to the Company at its principal office, or such
other location mutually agreed upon, this Warrant, with an Exercise Form duly
executed by the Warrantholder and indicating that the Warrantholder wishes to
exercise the Conversion Right and specifying the total number of shares of
Warrant Shares for which the Warrant is being exercised.
1.3 Delivery of Warrant Shares; Effectiveness of Exercise.
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(a) Delivery of Warrant Shares. A stock certificate or
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certificates for the Warrant Shares specified in the Exercise Form along with a
check for the amount of cash to be paid in lieu of fractional shares, if any,
shall be delivered to the Warrantholder within 5 Business Days after the
Exercise Date; provided, however, that if the Conversion Right is exercised in
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accordance with Section 1.2 and a determination by the Board of Directors or an
Independent Financial Expert is required to determine the Market Price of the
Common Stock, such delivery shall be made promptly, but in no event more than 5
Business Days, after such determination is made. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of the stock
certificate or certificates and cash in lieu of fractional
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shares, if any, deliver to the Warrantholder a new Warrant evidencing the rights
to purchase the remaining Warrant Shares, which new Warrant shall in all other
respects be identical with this Warrant.
(b) Effectiveness of Exercise. The exercise of this
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Warrant shall be deemed to have been effective immediately prior to the close of
business on the Business Day on which this Warrant is exercised in accordance
with Section 1.1 or 1.2 (the "Exercise Date"). The Person in whose name any
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certificate for shares of Common Stock shall be issuable upon such exercise
shall be deemed to be the record holder of such shares of Common Stock for all
purposes on the Exercise Date.
2. Restrictive Legends.
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2.1 Warrants. Except as otherwise permitted by this Section 2,
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each Warrant (and each Warrant issued in substitution for any Warrant pursuant
to Section 4) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE SECURITIES
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LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS VIROPHARMA INCORPORATED RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT THAT SUCH OFFER, SALE,
PLEDGE OR TRANSFER IS EXEMPT FROM ANY REGISTRATION OR PROSPECTUS DELIVERY
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS."
2.2 Warrant Shares. Except as otherwise permitted by this
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Section 2, each stock certificate for Warrant Shares issued upon the exercise of
any Warrant and each stock certificate issued upon the direct or indirect
transfer of any such Warrant Shares shall be stamped or otherwise imprinted with
a legend in substantially the following form:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY APPLICABLE STATE
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SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS VIROPHARMA
INCORPORATED RECEIVES AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT
THAT SUCH OFFER, SALE,
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PLEDGE OR TRANSFER IS EXEMPT FROM ANY REGISTRATION OR PROSPECTUS DELIVERY
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS."
2.3 Removal of Legends. Notwithstanding the foregoing, the
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Warrantholder may require the Company to issue a Warrant or a stock certificate
for Warrant Shares, in each case without a legend, if either (i) such Warrant or
such Warrant Shares, as the case may be, have been registered for resale under
the Securities Act and sold pursuant to such registration or (ii) if reasonably
requested in writing by the Company, the Warrantholder has delivered to the
Company an opinion of legal counsel (from a firm reasonably satisfactory to the
Company) which opinion shall be addressed to the Company and be reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
such registration is not required with respect to such Warrant or such Warrant
Shares, as the case may be.
3. Reservation and Registration of Shares, Etc. The Company
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covenants and agrees as follows:
(a) All Warrant Shares that are issued upon the exercise of
this Warrant will, upon issuance, be validly issued, fully paid and
nonassessable, not subject to any preemptive rights, and free from all taxes,
liens, security interests, charges, and other encumbrances with respect to the
issuance thereof, other than taxes in respect of any transfer occurring
contemporaneously with such issue.
(b) During the period within which this Warrant may be
exercised, the Company will at all times have authorized and reserved, and keep
available free from preemptive rights, a sufficient number of shares of Common
Stock to provide for the exercise of the rights represented by this Warrant.
4. Loss or Destruction of Warrant.
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Subject to the terms and conditions hereof, 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, of such bond or indemnification as the Company may reasonably
require, and, in the case of mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
5. Ownership of Warrant.
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The Company may deem and treat the Person in whose name this Warrant
is registered as the holder and owner hereof (notwithstanding any notations of
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ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer.
6. Certain Adjustments.
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6.1 The number of Warrant Shares purchasable upon the exercise
of this Warrant and the Exercise Price shall be subject to adjustment as
follows:
(a) Stock Dividends, Subdivision, Combination or
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Reclassification of Common Stock. If at any time after the date of the issuance
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of this Warrant the Company shall (i) pay a dividend on its Common Stock in
shares of its capital stock, (ii) combine its outstanding shares of Common Stock
into a smaller number of shares, (iii) subdivide its outstanding shares of
Common Stock or (iv) issue by reclassification of its shares of Common Stock any
shares of capital stock of the Company, then, on the record date for such
dividend or the effective date of such subdivision or split-up, combination or
reclassification, as the case may be, the number and kind of shares to be
delivered upon exercise of this Warrant will be adjusted so that the
Warrantholder will be entitled to receive the number and kind of shares of
capital stock that such Warrantholder would have owned or been entitled to
receive upon or by reason of such event had this Warrant been exercised
immediately prior thereto, and the Exercise Price will be adjusted as provided
below in paragraph (g).
(b) Extraordinary Distributions. If at any time after the
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date of issuance of this Warrant the Company shall distribute to all holders of
its Common Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation and the Common Stock is not changed or exchanged) cash, evidences of
indebtedness, securities or other assets (excluding (i) ordinary course cash
dividends to the extent such dividends do not exceed the Company's retained
earnings and (ii) dividends payable in shares of capital stock for which
adjustment is made under Section 6.1(a)) or rights, options or warrants to
subscribe for or purchase securities of the Company, then in each such case the
number of shares of Common Stock to be delivered to such Warrantholder upon
exercise of this Warrant shall be increased so that the Warrantholder thereafter
shall be entitled to receive the number of shares of Common Stock determined by
multiplying the number of shares such Warrantholder would have been entitled to
receive immediately before such record date by a fraction, the denominator of
which shall be the Market Price per share of Common Stock on such record date
minus the then fair market value (as reasonably determined by the Board of
Directors of the Company in good faith) of the portion of the cash, evidences of
indebtedness, securities or other assets so distributed or of such rights or
warrants applicable to one share of Common Stock (provided that such denominator
shall in no
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event be less than $.01) and the numerator of which shall be the Market Price
per share of the Common Stock, and the Exercise Price shall be adjusted as
provided below in paragraph (g).
(c) Pro Rata Repurchases. If at any time after the date of
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issuance of this Warrant, the Company or any subsidiary thereof shall make a Pro
Rata Repurchase, then the number of shares of Common Stock to be delivered to
such Warrantholder upon exercise of this Warrant shall be increased so that the
Warrantholder thereafter shall be entitled to receive the number of shares of
Common Stock determined by multiplying the number of shares of Common Stock such
Warrantholder would have been entitled to receive immediately before such Pro
Rata Repurchase by a fraction (which in no event shall be less than one) the
denominator of which shall be (i) the product of (x) the number of shares of
Common Stock outstanding immediately before such Pro Rata Repurchase and (y) the
Market Price of the Common Stock as of the day immediately preceding the first
public announcement by the Company of the intent to effect such Pro Rata
Repurchase minus (ii) the aggregate purchase price of the Pro Rata Repurchase
(provided that such denominator shall never be less than $.01), and the
numerator of which shall be the product of (i) the number of shares of Common
Stock outstanding immediately before such Pro Rata Repurchase minus the number
of shares of Common Stock repurchased in such Pro Rata Repurchase and (ii) the
Market Price of the Common Stock as of the day immediately preceding the first
public announcement by the Company of the intent to effect such Pro Rata
Repurchase.
(d) Reorganization, etc. If at any time after the date of
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issuance of this Warrant any consolidation of the Company with or merger of the
Company with or into any other Person (other than a merger or consolidation in
which the Company is the surviving or continuing corporation and which does not
result in any reclassification of, or change (other than a change in par value
or from par value to no par value or from no par value to par value, or as a
result of a subdivision or combination) in, outstanding shares of Common Stock)
or any sale, lease or other transfer of all or substantially all of the assets
of the Company to any other person (each, a "Reorganization Event"), shall be
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effected in such a way that the holders of Common Stock shall be entitled to
receive cash, stock, other securities or assets (whether such cash, stock, other
securities or assets are issued or distributed by the Company or another Person)
with respect to or in exchange for Common Stock, then, upon exercise of this
Warrant the Warrantholder shall have the right to receive the kind and amount of
cash, stock, other securities or assets receivable upon such Reorganization
Event by a holder of the number of shares of Common Stock that such
Warrantholder would have been entitled to receive upon exercise of this Warrant
had this Warrant been exercised immediately before such Reorganization Event,
subject to adjustments that shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 6.1. The Company shall not enter
into any of the
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transactions referred to in this Section 6.1(d) unless effective provision shall
be made so as to give effect to the provisions set forth in this Section 6.1(d).
(e) Fractional Shares. No fractional shares of Common
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Stock or scrip shall be issued to any Warrantholder in connection with the
exercise of this Warrant. Instead of any fractional shares of Common Stock that
would otherwise be issuable to such Warrantholder, the Company will pay to such
Warrantholder a cash adjustment (calculated to the nearest $.01) in respect of
such fractional interest in an amount equal to that fractional interest of the
then Market Price per share of Common Stock.
(f) Carryover. Notwithstanding any other provision of this
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Section 6.1, no adjustment shall be made to the number of shares of Common Stock
to be delivered to the Warrantholder (or to the Exercise Price) if such
adjustment represents less than .05% of the number of shares to be so delivered,
but any lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment that together with any
adjustments so carried forward shall amount to .05% or more of the number of
shares to be so delivered.
(g) Exercise Price Adjustment. Whenever the number of
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Warrant Shares purchasable upon the exercise of the Warrant is adjusted as
provided pursuant to this Section 6.1, the Exercise Price per share payable upon
the exercise of this Warrant shall be adjusted by multiplying such Exercise
Price immediately prior to such adjustment by a fraction, of which the numerator
shall be the number of Warrant Shares purchasable upon the exercise of the
Warrant immediately prior to such adjustment, and of which the denominator shall
be the number of Warrant Shares purchasable immediately thereafter; provided,
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however, that the Exercise Price for each Warrant Share shall in no event be
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less than the par value of such Warrant Share.
(h) Multiple Adjustments. If any action or transaction
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would require adjustment of the number of shares of Common Stock to be delivered
to the Warrantholder upon exercise of this Warrant pursuant to more than one
paragraph of this Section 6.1, only one adjustment shall be made and each such
adjustment shall be the amount of adjustment that has the highest absolute
value.
6.2 Notice of Adjustment. Whenever the number of Warrant Shares
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or the Exercise Price of such Warrant Shares is adjusted, as herein provided,
the Company shall promptly mail by first class mail, postage prepaid, to the
Warrantholder, notice of such adjustment or adjustments and a certificate of a
firm of independent public accountants of recognized national standing selected
by the Board of Directors of the Company (who shall be appointed at the
Company's expense and who may be the independent public accountants regularly
employed by the Company) setting forth the number of Warrant Shares and the
Exercise Price of such Warrant Shares after
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such adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was made.
7. Amendments. Any provision of this Warrant may be amended and the
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observance thereof waived only with the written consent of the Company and the
Warrantholder.
8. Notices of Corporate Action. So long as this Warrant has not been
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exercised in full, in the event of:
(a) of a consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is required; or
(b) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(c) of the sale, exchange or other conveyance (for cash,
shares of stock, securities or other consideration) of all or substantially all
the property and assets of the Company except to a wholly-owned subsidiary; or
(d) of any Pro Rata Repurchase;
then, in each case, the Company shall cause to be mailed, first-class postage
prepaid, to the Warrantholder, not less than 20 days nor more than 60 days prior
to the applicable record date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of any distribution or
grant of rights or warrants triggering an adjustment to pursuant to Section 6.1,
or, if a record is not to be taken, the date as of which the holders of record
of Common Stock entitled to such distribution, rights or warrants are to be
determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation, winding up or Pro Rata
Repurchase is expected to become effective, if known, and the date as of which
it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, conveyance, dissolution,
liquidation, winding up or Pro Rata Repurchase, if known. Failure to give the
notice specified hereunder shall have no effect on the status or effectiveness
of the action to which the required notice relates.
9. Registration Rights. The Warrantholder shall be entitled to
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registration rights with respect to this Warrant or the Warrant Shares issuable
upon exercise of this Warrant as set forth in the Investment Agreement.
10. Definitions.
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As used herein, unless the context otherwise requires, the following
terms have the following meanings:
"Business Day" means any day that is not a Saturday, a Sunday or a day
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on which banking institutions are not required to be open in New York City.
"Change of Control" means (i) the direct or indirect sale, lease,
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exchange or other transfer of all or substantially all of the assets of the
Company to any Person or group of Persons acting in concert as a partnership or
other group within the meaning of Rule 13d-5 under the Exchange Act (a "Group of
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Persons"), or (ii) the merger or consolidation of the Company with or into
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another corporation with the effect that the then existing stockholders of the
Company hold less than 50% of the combined voting power of the then outstanding
securities of the surviving corporation of such merger or the corporation
resulting from such consolidation ordinarily (and apart from rights accruing
under special circumstances, including the happening of a contingency) having
the right to vote in the election of directors.
"Closing Date" has the meaning specified in the Investment Agreement.
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"Closing Price" of the Common Stock as of any day, means (i) the last
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reported sale price of such stock (regular way) or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, in either
case as reported on the principal national securities exchange on which the
Common Stock is listed or admitted to trading or (ii) if the Common Stock is not
listed or admitted to trading on any national securities exchange, the last
reported sale price or, in case no such sale takes place on such day, the
average of the highest reported bid and lowest reported asked quotation for the
Common Stock, in either case reported on the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ"), or a similar service if
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NASDAQ is no longer reporting such information.
"Common Stock" has the meaning specified on the cover of this Warrant.
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"Company" has the meaning specified on the cover of this Warrant.
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"Exercise Form" means an Exercise Form in the form annexed hereto as
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Exhibit A.
"Expiration Date" has the meaning specified on the cover of this
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Warrant.
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"Exercise Price" has the meaning specified on the cover of this
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Warrant.
"Independent Financial Expert" means an independent nationally
----------------------------
recognized investment banking firm.
"Market Price" means, with respect to each share of Common Stock as of
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any date, the average of the daily Closing Prices per share of Common Stock for
the 30 consecutive Trading Days prior to such date; provided that, if on any
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such date the shares of Common Stock are not listed or admitted for trading on
any national securities exchange or quoted by NASDAQ or a similar service, the
Market Price for a share of Common Stock shall be the fair market value of such
share as determined in good faith by the Board of Directors of the Company. If
the Board of Directors is unable to determine the fair market value, or if the
holders of a majority in interest of the Warrants disagree with the Board's
determination of fair market value by written notice delivered to the Company
within five (5) Business Days after the Board's determination thereof is
communicated in writing to such holders, which notice specifies a majority-in-
interest of such holders' determination of fair market value, then the Company
and a majority-in-interest of such holders shall select an Independent Financial
Expert which shall determine such fair market value. If the Company and such
holders are unable to agree upon an Independent Financial Expert within fifteen
(15) days after the request by such holders, the Company, on the one hand, and
such holders, on the other, shall each select an Independent Financial Expert
within five (5) days following the expiration of such fifteen (15) day period,
and these two Independent Financial Experts shall select a third Independent
Financial Expert. The determination of fair market value by such Independent
Financial Expert shall be final, binding and conclusive on the Company and the
Warrantholder. All costs and fees of any Independent Financial Experts retained
in accordance with the foregoing shall be borne by the Company.
"Person" means any individual, firm, corporation, partnership, limited
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liability company or partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind, and shall include
any successor (by merger or otherwise) of such entity.
"Price Floor" has the meaning specified on the cover of this Warrant.
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"Pro Rata Repurchase" means any purchase of shares of Common Stock by
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the Company or by any of its subsidiaries whether for cash, shares of capital
stock of the Company, other securities of the Company, evidences of indebtedness
of the Company or any other Person or any other property (including, without
limitation, shares of capital stock, other securities or evidences of
indebtedness of a subsidiary of the Company), or any combination thereof, which
purchase is subject to Section 13(e)
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of the Securities Exchange Act of 1934, as amended, or is made pursuant to an
offer made available to all holders of Common Stock.
"Securities Act" has the meaning specified on the cover of this
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Warrant.
"Warrantholder" has the meaning specified on the cover of this
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Warrant.
"Warrant Shares" has the meaning specified on the cover of this
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Warrant.
11. Miscellaneous.
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11.1 Entire Agreement. This Warrant together with the Investment
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Agreement constitute the entire agreement between the Company and the
Warrantholder with respect to this Warrant.
11.2 Binding Effect; Benefits. This Warrant shall inure to the
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benefit of and shall be binding upon the Company and the Warrantholder and their
respective successors and assigns. Nothing in this Warrant, expressed or
implied, is intended to or shall confer on any person other than the Company and
the Warrantholder, or their respective successors or assigns, any rights,
remedies, obligations or liabilities under or by reason of this Warrant.
11.3 Section and Other Headings. The section and other headings
--------------------------
contained in this Warrant are for reference purposes only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
11.4 Notices. All notices or other communications given or made
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hereunder shall be validly given or made if in writing and delivered by
facsimile transmission or in Person at, mailed by registered or certified mail,
return receipt requested, postage prepaid, or sent by a reputable overnight
courier to, the following addresses (and shall be deemed effective at the time
of receipt thereof).
If to the Company:
ViroPharma Incorporated
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
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with a copies to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
If to the Warrantholder:
Perseus-Xxxxx BioPharmaceutical Fund, LP
c/o Perseus Capital, LLC
the Army and Navy Club Building
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx X.X. 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxx, Ph.D.
and
Perseus Capital, LLC
the Army and Navy Club Building
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx X.X. 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
and
Xxxxx Fund Management, LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
and
Xxxxx Fund Management, LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx Xxxxxxxxxx
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with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
or at such other address as a party hereto shall from time to time designate by
written notice, in the manner provided herein, to the other parties hereto.
Notice given in accordance with this Section shall be deemed given and received
as of the earlier of (i) actual receipt or (ii) first attempted delivery which
is refused (as opposed to being returned for insufficient postage/fee, improper
address or like cause). All references to days in this Agreement shall be deemed
to refer to calendar days, unless otherwise specified. If any notice, filing,
delivery or payment shall be required by the terms hereof to be made on a day
that is not a Business Day, such notice, filing, delivery or payment shall be
made on the immediately succeeding Business Day.
11.5 No Dilution or Impairment. The Company will not, by
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amendment of its certificate or articles of incorporation or through any
reorganization, 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 of this Warrant, but will, at all times, in good
faith, assist in the carrying out of all such terms. Without limiting the
generality of the foregoing, the Company (i) will not increase the par value of
any shares of stock receivable on the exercise of this Warrant above the amount
payable therefor on such exercise, (ii) will, at all times, reserve and keep
available the maximum number of its authorized shares of Common Stock, free from
all preemptive rights therein, which will be sufficient to permit the full
exercise of this Warrant and (iii) will take all such action as may be necessary
or appropriate in order that all shares of Common Stock as may be issued
pursuant to the exercise of this Warrant will, upon issuance, be duly and
validly issued, fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issue thereof.
11.6 Charges, Taxes and Expenses. Issuance of certificates for
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shares of Common Stock upon the exercise of this Warrant shall be made without
charge to the Warrantholder hereof for any issue or transfer tax, or other
incidental expense, in respect of the issuance or delivery of such certificates
or the securities represented thereby, all of which taxes and expenses shall be
paid by the Company; provided, however, that the Warrantholder shall be required
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to pay any and all taxes that may be payable in respect of any transfer involved
in the issuance and delivery of any certificate in a name other than that of the
then Warrantholder as reflected upon the books of the Company.
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11.7 Severability. Any term or provision of this Warrant which
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is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
11.8 Certain Remedies. The Warrantholder shall be entitled to
----------------
an injunction or injunctions to prevent breaches of the provisions of this
Warrant and to enforce specifically the terms and provisions of this Warrant in
any court of the United States or any court of any state having jurisdiction,
this being in addition to any other remedy to which the Warrantholder may be
entitled at law or in equity.
11.9 No Rights or Liabilities as Stockholder. Nothing contained
---------------------------------------
in this Warrant shall be deemed to confer upon the Warrantholder any rights as a
stockholder of the Company or as imposing any liabilities on the Warrantholder
to purchase any securities whether such liabilities are asserted by the Company
or by creditors or stockholders of the Company or otherwise.
11.10 Governing Law. The Company and, by acceptance of this
-------------
Warrant, the Warrantholder each hereby acknowledge and agree that the Warrant
granted hereby shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
15
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer.
VIROPHARMA INCORPORATED
By: /s/ Xxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxx X. Xxxx, Ph.D.
Title: President and Chief Executive Officer
Dated: May 5, 1999
AGREED AND ACKNOWLEDGED:
PERSEUS-XXXXX BIOPHARMACEUTICAL FUND, LP
By: Perseus-Xxxxx Partners, LLC,
General Partner
By: Perseus Management, LLC,
Member
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chairman:
Dated: May 5, 1999
[COMMON STOCK PURCHASE WARRANT SIGNATURE PAGE]
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EXHIBIT A
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EXERCISE FORM
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(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase __________ of the Warrant Shares and
[herewith tenders payment for such Warrant Shares to the order of ViroPharma
Incorporated in the amount of $__________] [hereby exercises its Conversion
Right] in accordance with the terms of this Warrant. The undersigned requests
that a certificate for [such Warrant Shares] [that number of Warrant Shares to
which the undersigned is entitled as calculated pursuant to Section 1.2] be
registered in the name of the undersigned and that such certificates be
delivered to the undersigned's address below.
Dated:__________________________
Signature____________________________
____________________________
(Print Name)
____________________________
(Xxxxxx Xxxxxxx)
____________________________
(City) (State) (Zip Code)
