EXHIBIT 4.4
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR SALE
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES
UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
CYGNUS, INC.
Common Stock Purchase Warrant
Cygnus, Inc., a Delaware corporation (the "Company"), hereby certifies
that for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Reedland Capital Partners, a California
corporation having an address at 00 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxxxxxxxxx 00000, ("Purchaser") or any other Warrant Holder
(hereinafter defined) is entitled, on the terms and conditions set forth
below, to purchase from the Company at any time after the date hereof
(subject to the provisions of Section 2 hereof) and ending sixty (60) months
after the date hereof, that number of fully paid and nonassessable shares of
the common stock, par value $.001 per share, of the Company (the "Common
Stock") up to fifty thousand (50,000), at the Purchase Price (hereinafter
defined) per share, as the same may be adjusted pursuant to Section 5 herein.
1. DEFINITIONS.
(a) The term "Fair Market Value" shall mean the closing sale price per
share of the Common Stock on the Principal Market on the day prior to the
date of exercise of this Warrant.
(b) The term "Principal Market" shall mean the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market, whichever is the
principal trading exchange or market for the Common Stock.
(c) The term "Purchase Price" shall mean thirteen and eighty-six
hundredths dollars ($13.86).
(d) The term "Warrant Holder" shall mean the Purchaser or any permitted
assignee of all or any portion of this Warrant.
(e) The term "Warrant Shares" shall mean the shares of Common Stock or
other securities issuable upon exercise of this Warrant.
2. EXERCISE OF WARRANT.
This Warrant may be exercised by Warrant Holder, in whole or in part, at
any time and from time to time, on or prior to the date sixty (60) months
from the date hereof, by either of the following methods:
(a) The Warrant Holder may surrender this Warrant, together with cash,
a certified check payable to the Company or wire transfer of immediately
available funds to an account designated by the Company representing the
aggregate Purchase Price of the number of Warrant Shares for which the
Warrant is being surrendered and the form of subscription attached hereto as
EXHIBIT A, duly executed by Warrant Holder ("Subscription Notice"), at the
offices of the Company; or
(b) The Warrant Holder may also exercise this Warrant, in whole or in
part, on a "cashless" or "net-issue" basis by delivering to the offices of
the Company this Warrant, together with a Subscription Notice specifying the
number of Warrant Shares to be delivered to the Warrant Holder and the number
of Warrant Shares to be surrendered in payment of the aggregate Purchase
Price according to the following formula:
D = FMV - PP multiplied by SS
--------
FMV
Where
"D" means the number of Warrant Shares to be delivered on exercise of the
Warrant,
"FMV" means the Fair Market Value, and
"SS" means the number of Warrant Shares to be delivered in payment of the
Purchase Price
"PP" means Purchase Price
(c) such that, without the exchange of any funds, the Warrant Holder
will receive that number of Warrant Shares (and such other consideration
otherwise issuable, or payable, upon exercise of this Warrant) less that
number of Warrant Shares having an aggregate Fair Market Value on the date
prior to the date of exercise equal to the aggregate Purchase Price that
would otherwise have been paid by the Warrant Holder as specified in the
Subscription Notice.
In the event that the Warrant is not exercised in full, the number of
Warrant Shares shall be reduced by the number of such Warrant Shares for
which this Warrant is exercised, and the Company, at its expense, shall
forthwith issue and deliver or upon the order of Warrant Holder a new Warrant
of like tenor in the name of Warrant Holder or as Warrant Holder (upon
payment by Warrant Holder of any applicable transfer taxes) may request,
reflecting such adjusted Warrant Shares.
3. DELIVERY OF CERTIFICATES.
(a) Subject to the terms and conditions of this Warrant, as soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within three (3) Trading Days thereafter, the Company shall transmit
the certificates (together with any other stock or other securities or
property to which Warrant Holder is entitled upon exercise) by messenger or
overnight delivery service to reach the address designated by such holder
within three (3) trading days after the receipt of the Warrant, the
Subscription Notice and payment of the aggregate Purchase Price in Section
2(a) or 2(b), as appropriate ("T+3"). In lieu of delivering physical
certificates representing the Common Stock issuable upon exercise, provided
the Company's transfer agent is participating in the Depository Trust Company
("DTC") Fast Automated
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Securities Transfer ("FAST") program, upon request of the Warrant Holder, the
Company shall use its best efforts to cause its transfer agent to
electronically transmit the Common Stock issuable upon exercise to the
Warrant Holder by crediting the account of Warrant Holder's prime broker with
DTC through its Deposit Withdrawal Agent Commission ("DWAC") system. The time
periods for delivery described in the immediately preceding paragraph shall
apply to the electronic transmittals described herein.
(b) This Warrant may not be exercised as to fractional shares of Common
Stock. In the event that the exercise of this Warrant, in full or in part,
would result in the issuance of any fractional share of Common Stock, then in
such event Warrant Holder shall be entitled to cash equal to the Fair Market
Value of such fractional share.
4. REPRESENTATIONS AND COVENANTS.
(a) REPRESENTATIONS AND COVENANTS OF THE COMPANY. From the date hereof
through the last date on which this Warrant is exercisable, the Company shall
take all steps reasonably necessary and within its control to insure that the
Common Stock remains listed on a Principal Market so long as it is publicly
traded and shall not amend its Certificate of Incorporation or Bylaws so as
to adversely affect any rights of the Warrant Holder under this Warrant in
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(b) material respect.
(c) REPRESENTATIONS AND COVENANTS OF THE PURCHASER. The Purchaser
shall not resell Warrant Shares, unless such resale is pursuant to an
effective registration statement under the Act or pursuant to an applicable
exemption from such registration requirements and such sale otherwise
complies with state and federal securities laws.
5. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES.
The number and kind of securities purchasable upon exercise of this
Warrant and the Purchase Price shall be subject to adjustment from time to
time as follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the Company
shall at any time after the date hereof but prior to the expiration of this
Warrant subdivide its outstanding securities as to which purchase rights
under this Warrant exist, by split-up, or otherwise, or combine its
outstanding securities as to which purchase rights under this Warrant exist,
the number of Warrant Shares as to which this Warrant is exercisable as of
the date of such split-up or combination shall forthwith be proportionately
increased in the case of a split-up, or proportionately decreased in the case
of a combination. Appropriate adjustments shall also be made to the Purchase
Price payable per share, so that the aggregate Purchase Price payable for the
total number of Warrant Shares purchasable under this Warrant as of such date
shall remain the same.
(b) STOCK DIVIDEND. If at any time after the date hereof but prior to
the expiration of this Warrant, the Company declares a dividend or other
distribution on Common Stock payable in Common Stock or other securities or
rights convertible into Common Stock ("Common Stock
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Equivalents") without payment of any consideration by holders of Common Stock
for the additional shares of Common Stock or the Common Stock Equivalents
(including the additional shares of Common Stock issuable upon exercise or
conversion thereof), then the number of shares of Common Stock for which this
Warrant may be exercised shall be increased as of the record date (or the
date of such dividend distribution if no record date is set) for determining
which holders of Common Stock shall be entitled to receive such dividends, in
proportion to the increase in the number of outstanding shares (and shares of
Common Stock issuable upon conversion of all such securities convertible into
Common Stock) of Common Stock as a result of such dividend, and the Purchase
Price per share shall be adjusted so that the aggregate Purchase Price for
the Warrant Shares issuable hereunder immediately after the record date (or
on the date of such distribution, if applicable), for such dividend shall
equal the aggregate Purchase Price immediately before such record date (or on
the date of such distribution, if applicable).
(c) OTHER DISTRIBUTIONS. If at any time after the date hereof but
prior to the expiration of this Warrant, the Company distributes to holders
of its Common Stock, other than as part of its dissolution, liquidation or
the winding up of its affairs, any shares of its capital stock, any evidence
of indebtedness or any of its assets (other than cash, Common Stock or
securities convertible into or exchangeable for Common Stock), then the
number of Warrant Shares for which this Warrant is exercisable shall be
increased to equal: (i) the number of Warrant Shares for which this Warrant
is exercisable immediately prior to such event, (ii) multiplied by a
fraction, (A) the numerator of which shall be the Fair Market Value per share
of Common Stock on the record date for the dividend or distribution, and (B)
the denominator of which shall be the Fair Market Value per share of Common
Stock on the record date for the dividend or distribution minus the amount
allocable to one share of Common Stock of the value (as determined in good
faith by the Board of Directors of the Company) of any and all such evidences
of indebtedness, shares of capital stock, other securities or property, so
distributed. The Purchase Price shall be reduced to equal: (i) the Purchase
Price in effect immediately before the occurrence of any such event (ii)
multiplied by a fraction, (A) the numerator of which is the number of Warrant
Shares for which this Warrant is exercisable immediately before the
adjustment, and (B) the denominator of which is the number of Warrant Shares
for which this Warrant is exercisable immediately after the adjustment.
(d) MERGER, ETC. If at any time after the date hereof there shall be a
merger or consolidation of the Company with or into or a transfer of all or
substantially all of the assets of the Company to another entity, then the
Warrant Holder shall be entitled to receive upon payment of the aggregate
Purchase Price then in effect, the number of shares or other securities or
property of the Company or of the successor corporation resulting from such
merger or consolidation, which would have been received by Warrant Holder for
the shares of stock subject to this Warrant had this Warrant been exercised
just prior to such transfer, merger or consolidation becoming effective or to
the applicable record date thereof, as the case may be. The Company will not
merge into or consolidate with or into any other corporation, or sell or
otherwise transfer its property, assets and business substantially as an
entirety to another corporation, unless the corporation resulting from such
merger or consolidation (if not the Company), or such transferee corporation,
as the case may be, shall expressly assume, by supplemental agreement
reasonably
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satisfactory in form and substance to the Warrant Holder, the due and
punctual performance and observance of each and every covenant and condition
of this Warrant to be performed and observed by the Company.
(e) RECLASSIFICATION, ETC. If at any time after the date hereof there
shall be a reorganization or reclassification of the securities as to which
purchase rights under this Warrant exist into the same or a different number
of securities of any other class or classes, then the Warrant Holder shall
thereafter be entitled to receive upon exercise of this Warrant, during the
period specified herein and upon payment of the Purchase Price then in
effect, the number of shares or other securities or property resulting from
such reorganization or reclassification, which would have been received by
the Warrant Holder for the shares of stock subject to this Warrant had this
Warrant at such time been exercised.
6. NO IMPAIRMENT.
The Company will not, by amendment of its Certificate of Incorporation
or through any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary 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 all
of such terms and in the taking of all such action as may be reasonably
necessary or appropriate in order to protect the rights of the Warrant Holder
against impairment. Without limiting the generality of the foregoing, the
Company (a) will not increase the par value of any Warrant Shares above the
amount payable therefor on such exercise, and (b) will take all such action
as may be reasonably necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares on the
exercise of this Warrant.
7. NOTICE OF ADJUSTMENTS.
Whenever the Purchase Price or number of Warrant Shares purchasable
hereunder shall be adjusted pursuant to Section 5 hereof, the Company shall
execute and deliver to the Warrant Holder (by first class mail, postage
prepaid) a certificate setting forth, in reasonable detail, the event
requiring the adjustment, the amount of the adjustment, the method by which
such adjustment was calculated and the Purchase Price and number of shares
purchasable hereunder after giving effect to such adjustment.
8. RIGHTS AS SHAREHOLDER.
Prior to exercise of this Warrant, the Warrant Holder shall not be
entitled to any rights as a stockholder of the Company with respect to the
Warrant Shares, including (without limitation) the right to vote such shares,
receive dividends or other distributions thereon or be notified of
stockholder meetings. However, in the event of any taking by the Company of a
record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution (other than a cash dividend), any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right (other than the right
to vote), the Company
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shall provide notice pursuant to Section 13 below to each Warrant Holder, at
least 10 days prior to the date of such record, therein, a notice specifying
the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, and the amount and character of such
dividend, distribution or right.
9. REPLACEMENT OF WARRANT.
On receipt of evidence reasonably satisfactory to the Company of the
loss, theft, destruction or mutilation of the Warrant and, in the case of any
such loss, theft or destruction of the 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 the Warrant Holder's expense will execute
and deliver, in lieu thereof, a new Warrant of like tenor.
10. SPECIFIC ENFORCEMENT; CONSENT TO JURISDICTION AND CHOICE OF LAW.
(a) The Company and the Warrant Holder acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of
this Warrant were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Warrant and to enforce specifically the terms and
provisions hereof, this being in addition to any other remedy to which either
of them may be entitled by law or equity.
(b) EACH OF THE COMPANY AND THE WARRANT HOLDER (I) HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURT LOCATED
IN SAN FRANCISCO COUNTY, CALIFORNIA FOR THE PURPOSES OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS WARRANT AND (II) HEREBY WAIVES,
AND AGREES NOT TO ASSERT IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT THE
SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE
VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH OF THE COMPANY AND
THE WARRANT HOLDER CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION
OR PROCEEDING BY MAILING A COPY THEREOF TO SUCH PARTY AT THE ADDRESS IN
EFFECT FOR NOTICES TO IT UNDER THIS WARRANT AND AGREES THAT SUCH SERVICE
SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF.
NOTHING IN THIS PARAGRAPH SHALL AFFECT OR LIMIT ANY RIGHT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW.
(c) THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD
TO SUCH STATE'S PRINCIPLES OF CONFLICT OF LAWS.
11. ENTIRE AGREEMENT; AMENDMENTS.
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This Warrant contains the entire understanding of the parties with
respect to the matters covered hereby and thereby and except as specifically
set forth herein and therein, neither the Company nor the Warrant Holder
makes any representation, warranty, covenant or undertaking with respect to
such matters. This Warrant and any term thereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
12. NOTICES.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be effective (a) upon hand delivery
or delivery by telex (with correct answer back received), telecopy or
facsimile at the address or number designated below (if delivered on a
business day during normal business hours where such notice is to be
received), or the first business day following such delivery (if delivered
other than on a business day during normal business hours where such notice
is to be received) or (b) on the second business day following the date of
mailing by express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first occur. The
addresses for such communications shall be:
to the Company:
Cygnus, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attn: Chief Executive Officer
Fax: (000) 000-0000
with copies to:
Cygnus, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
to the Purchaser:
Reedland Capital Partners
00 Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Managing Director
Fax: (000) 000-0000
Either party hereto may from time to time change its address for notices
under this Section 12 by
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giving at least 10 days prior written notice of such changed address to the
other party hereto.
13. MISCELLANEOUS.
This Warrant and any term hereof may be changed, waived, discharged or
terminated only by an instrument in writing signed by the party against which
enforcement of such change, waiver, discharge or termination is sought. The
headings in this Warrant are for purposes of reference only, and shall not
limit otherwise affect any of the terms hereof. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity
or enforceability of any other provisions.
14. ASSIGNMENT.
This Warrant may not be assigned, by the Warrant Holder, in whole or in
part, without the prior written consent of the Company; PROVIDED, HOWEVER,
that upon written notice to the Company, the Warrant Holder may assign this
Warrant, in whole or in part, to an Affiliate of the Warrant Holder without
the Company's consent. In either case, to effect a transfer of this Warrant,
the Warrant Holder shall submit this Warrant to the Company together with a
duly executed Assignment in substantially the form and substance of the Form
of Assignment which accompanies this Warrant and, upon the Company's receipt
hereof, and in any event, within three (3) business days thereafter, the
Company shall issue a Warrant to the Warrant Holder to evidence that portion
of this Warrant, if any as shall not have been so transferred or assigned.
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Dated: June 29, 1999
CYGNUS, INC.
By:
----------------------------------
Xxxx X. Xxxxxxx
President, Chief Executive Officer
and Chairman
Attest:
------------------
By:
----------------------
Its:
---------------------
[SIGNATURE PAGE TO WARRANT]
SUBSCRIPTION NOTICE
(FORM OF WARRANT EXERCISE)
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO
----------------
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise this Warrant:
_____(A) for, and to purchase thereunder, _______________ shares of Common
Stock of Cygnus, Inc., a Delaware corporation (the "Common
Stock"), and herewith, or by wire transfer, makes payment of
$_____therefor; or
_____(B) in a "cashless" or "net-issue exercise" for, and to purchase
thereunder ______________________ shares of Common Stock.
The undersigned requests that the certificates for such shares be
issued in the name of, and
_____(A) delivered to ___________________, whose address is
_____________________; or
_____(B) electronically transmitted and credited to the account of
______________ undersigned's prime broker (Account No.
_______________) with Depository Trust Company through its
Deposit Withdrawal Agent Commission system.
Dated: _______________
______________
_______________________________
(Signature must conform to name of holder as
specified on the face of the Warrant)
__________________________
(Address)
Tax Identification Number: _____________
______________
FORM OF ASSIGNMENT
(TO BE SIGNED ONLY ON TRANSFER OF WARRANT)
For value received, the undersigned hereby sells, assigns, and transfers
unto ______________ the right represented by the within Warrant to purchase
____ shares of Common Stock of Cygnus, Inc., a Delaware corporation, to which
the within Warrant relates, and appoints _________ Attorney to transfer such
right on the books of Cygnus, Inc., a Delaware corporation, with full power
of substitution of premises.
Dated: _______________
__________________________________
(Signature must conform to name of holder
as specified on the face of the Warrant)
__________________________________
(Address)
Signed in the presence of:
__________________________
