Exhibit 10.70
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY
MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.
THIS WARRANT IS VOID AFTER 5:00 P.M., SAN DIEGO TIME, ON FEBRUARY 1, 2002 OR
UPON EARLY TERMINATION AS PROVIDED IN SECTION 9 HEREOF.
WARRANT NO. __________
WARRANT TO PURCHASE
________ SHARES OF COMMON STOCK OF
CORVAS INTERNATIONAL, INC.
This certifies that __________________ (the "Holder"), or assigns, for
value received, is entitled to purchase from Corvas International, Inc., a
Delaware corporation (the "Company"), having a place of business at 0000 Xxxxxxx
Xxxx Xxxx, Xxx Xxxxx, XX 00000, ______________ fully paid and nonassessable
shares of the Company's Common Stock ("Common Stock") for cash at a price of six
dollars ($6.00) per share (the "Stock Purchase Price") at any time or from time
to time up to and including 5:00 p.m. (Pacific time) on the first to occur of
the Call Date (as defined in Section 9 hereof) or February 1, 2002 (such first
date to occur is hereinafter referred to as the "Expiration Date" and such
period is hereinafter referred to as the "Exercise Period"), upon surrender to
the Company at its principal office (or at such other location as the Company
may advise the Holder in writing) of this Warrant properly endorsed with the
Form of Subscription attached hereto duly filled in and signed and upon payment
in cash or by check, or by net exercise pursuant to Section 9.2 below, of the
aggregate Stock Purchase Price for the number of shares for which this Warrant
is being exercised determined in accordance with the provisions hereof. This
Warrant is issued in exchange for one of the Warrants issued pursuant to that
certain Stock and Warrant Purchase Agreement, dated as of February 2, 1996,
between the Company and certain investors named therein (the "Purchase
Agreement"). The Stock Purchase Price and the number of shares purchasable
hereunder are subject to adjustment as provided in Section 3 of this Warrant.
This Warrant is subject to the following terms and conditions:
1. EXERCISE; ISSUANCE OF CERTIFICATES; PAYMENT FOR SHARES. This
Warrant is exercisable at the option of the holder of record hereof, at any time
or from time to time, up to the Expiration Date for all or any part of the
shares of Common Stock (but not for a fraction of a share) which may be
purchased hereunder. The Company agrees that the shares of Common Stock
purchased under this Warrant shall be and are deemed to be issued to the Holder
hereof as the record owner of such shares as of the close of business on the
date on which this Warrant shall have been surrendered, properly endorsed, the
completed, executed Form of Subscription
1.
delivered and payment made for such shares. Certificates for the shares of
Common Stock so purchased, together with any other securities or property to
which the Holder hereof is entitled upon such exercise, shall be delivered to
the Holder hereof by the Company at the Company's expense within a reasonable
time after the rights represented by this Warrant have been so exercised. In
case of a purchase of less than all the shares which may be purchased under this
Warrant, the Company shall cancel this Warrant and execute and deliver a new
Warrant or Warrants of like tenor for the balance of the shares purchasable
under the Warrant surrendered upon such purchase to the Holder hereof within a
reasonable time. Each stock certificate so delivered shall be in such
denominations of Common Stock as may be requested by the Holder hereof and shall
be registered in the name of such Holder.
2. SHARES TO BE FULLY PAID; RESERVATION OF SHARES. The Company
covenants and agrees that all shares of Common Stock which may be issued upon
the exercise of the rights represented by this Warrant will, upon issuance, be
duly authorized, validly issued, fully paid and nonassessable and free from all
preemptive rights of any stockholder and free of all taxes, liens and charges
with respect to the issue thereof. The Company further covenants and agrees that
during the period within which the rights represented by this Warrant may be
exercised, the Company will at all times have authorized and reserved, for the
purpose of issue or transfer upon exercise of the subscription rights evidenced
by this Warrant, a sufficient number of shares of authorized but unissued Common
Stock, or other securities and property, when and as required to provide for the
exercise of the rights represented by this Warrant. The Company will take all
such action as may be necessary to assure that such shares of Common Stock may
be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of any domestic securities exchange upon
which the Common Stock may be listed; PROVIDED, HOWEVER, that the Company shall
not be required to effect a registration under Federal or State securities laws
with respect to such exercise (except as contemplated by the Purchase
Agreement). The Company will not take any action which would result in any
adjustment of the Stock Purchase Price (as adjusted under Section 3 hereof) if
the total number of shares of Common Stock issuable after such action upon
exercise of all outstanding warrants, together with all shares of Common Stock
then outstanding and all shares of Common Stock then issuable upon exercise of
all options and upon the conversion of all convertible securities then
outstanding, would exceed the total number of shares of Common Stock then
authorized by the Company's Certificate of Incorporation.
3. ADJUSTMENT OF STOCK PURCHASE PRICE AND NUMBER OF SHARES. The Stock
Purchase Price and the number of shares purchasable upon the exercise of this
Warrant shall be subject to adjustment from time to time upon the occurrence of
certain events described in this Section 3. Upon each adjustment of the Stock
Purchase Price, the Holder of this Warrant shall thereafter be entitled to
purchase, at the Stock Purchase Price resulting from such adjustment, the number
of shares obtained by multiplying the Stock Purchase Price in effect immediately
prior to such adjustment by the number of shares purchasable pursuant hereto
immediately prior to such adjustment, and dividing the product thereof by the
Stock Purchase Price resulting from such adjustment.
3.1 SUBDIVISION OR COMBINATION OF STOCK. In case the Company
shall at any time after August 24, 1998 (the "Original Warrant Issue Date")
subdivide its outstanding shares of Common Stock into a greater number of
shares, the Stock Purchase Price in effect
2.
immediately prior to such subdivision shall be proportionately reduced, and
conversely, in case the outstanding shares of Common Stock of the Company shall
be combined into a smaller number of shares, the Stock Purchase Price in effect
immediately prior to such combination shall be proportionately increased.
3.2 DIVIDENDS IN COMMON STOCK, OTHER STOCK, PROPERTY,
RECLASSIFICATION. If at any time or from time to time the Holders of Common
Stock (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant) shall have received or become entitled to receive,
without payment therefor,
(a) Common Stock or any shares of stock or other
securities which are at any time directly or indirectly convertible into or
exchangeable for Common Stock, or any rights or options to subscribe for,
purchase or otherwise acquire any of the foregoing by way of dividend or other
distribution,
(b) any cash paid or payable otherwise than as a cash
dividend, or
(c) Common Stock or additional stock or other
securities or property (including cash) by way of spinoff, split-up,
reclassification, combination of shares or similar corporate rearrangement,
(other than (i) shares of Common Stock issued as a stock split, adjustments in
respect of which shall be covered by the terms of Section 3.1 above or (ii) an
event for which adjustment is otherwise made pursuant to Section 3.3 below),
then and in each such case, the Holder hereof shall, upon the exercise of this
Warrant, 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 stock and other securities and property (including cash
in the cases referred to in clauses (b) and (c) above) which such Holder would
hold on the date of such exercise had he been the holder of record of such
Common Stock as of the date on which holders of Common Stock received or became
entitled to receive such shares or all other additional stock and other
securities and property.
3.3 REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR
SALE. If any capital reorganization of the capital stock of the Company, or any
consolidation or merger of the Company with another corporation, or the sale of
all or substantially all of its assets to another corporation shall be effected
in such a way that holders of Common Stock shall be entitled to receive stock,
securities, or other assets or property, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale, lawful and
adequate provisions shall be made whereby the holder hereof shall thereafter
have the right to purchase and receive (in lieu of the shares of the Common
Stock of the Company immediately theretofore purchasable and receivable upon the
exercise of the rights represented hereby) such shares of stock, securities or
other assets (including cash) or property as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented hereby.
In any reorganization described above, appropriate provision shall be made with
respect to the rights and interests of the Holder of this Warrant to the end
that the provisions hereof (including, without limitation, provisions for
adjustments of the Stock Purchase Price and of the number of shares purchasable
and receivable upon the exercise of this Warrant) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock,
3.
securities or assets thereafter deliverable upon the exercise hereof (including
an immediate adjustment, by reason of such reorganization or reclassification,
of the Stock Purchase Price to the value for the Common Stock reflected by the
terms of such reorganization or reclassification if the value so reflected is
less than the Stock Purchase Price in effect immediately prior to such
reorganization or reclassification). In the event of a merger or consolidation
of the Company as a result of which a greater or lesser number of shares of
common stock of the surviving corporation are issuable to holders of Common
Stock of the Company outstanding immediately prior to such merger or
consolidation, the Stock Purchase Price in effect immediately prior to such
merger or consolidation shall be adjusted in the same manner as though there
were a subdivision or combination of the outstanding shares of Common Stock of
the Company. The Company will not effect any such consolidation, merger or sale
unless, prior to the consummation thereof, the successor corporation (if other
than the Company) resulting from such consolidation or the corporation
purchasing such assets shall assume by written instrument, executed and mailed
or delivered to the registered Holder hereof at the last address of such Holder
appearing on the books of the Company, the obligation to deliver to such Holder
such shares of stock, securities or assets as, in accordance with the foregoing
provisions, such Holder may be entitled to purchase.
3.4 ISSUANCE OF ADDITIONAL SHARES. The Stock Purchase Price in
effect from time to time shall be subject to adjustment upon the issuance of
Common Stock or Convertible Securities (as hereinafter defined) so long as any
Warrants are then issued and outstanding.
(a) SPECIAL DEFINITIONS. For purposes of this Section
3.4, the following definitions shall apply:
(i) "Option" shall mean contractual rights,
options or warrants to subscribe for, purchase or otherwise acquire either
Common Stock or Convertible Securities.
(ii) "Warrants" shall mean, collectively,
this Warrant and the other warrants issued on the Original Warrant Issue Date in
connection with the transaction with respect to which this Warrant was issued.
(iii) "Convertible Securities" shall mean
any evidences of indebtedness, shares (other than Common Stock and Warrants) or
other securities directly or indirectly convertible into or exchangeable for
Common Stock.
(iv) "Additional Shares of Common Stock"
shall mean all shares of Common Stock issued (or, pursuant to Section 3.4(c),
deemed to be issued) by the Company after the Original Warrant Issue Date, other
than shares of Common Stock issued or issuable:
(1) pursuant to Options, Warrants or
Convertible Securities outstanding on the Original Warrant Issue Date;
(2) to directors, officers or
employees of, or consultants to, the Company pursuant to any plan or agreement
approved by the Board of Directors, subject to adjustment for all subdivisions
and combinations;
4.
(3) upon any event for which
adjustment is made pursuant to Section 3 hereof;
(4) by way of dividend or other
distribution on shares excluded from the definition of Additional Shares of
Common Stock by the foregoing clauses (i), (ii) or (iii) or this clause (iv) or
on shares of Common Stock so excluded;
(5) pursuant to any equipment leasing,
borrowing or similar transaction approved by the Board of Directors; provided,
however, that for the period commencing on the Original Warrant Issue Date and
ending February 2, 1999, shares issued or issuable pursuant to such transactions
shall not exceed a number equal to five percent (5%) of the then issued and
outstanding Common Stock; or
(6) in connection with any transaction
approved by the written consent of the holders of the Warrants representing at
least two-thirds of Common Stock then issuable upon exercise of the Warrants and
the warrants issued pursuant to the Purchase Agreement.
(b) NO ADJUSTMENT OF STOCK PURCHASE PRICE. No
adjustment of the Stock Purchase Price shall be made in respect of the issuance
of Additional Shares of Common Stock unless the consideration per share for an
Additional Share of Common Stock issued or deemed to be issued by the Company is
less than the Stock Purchase Price in effect on the date of the issue of such
Additional Shares.
(c) ISSUANCE OF SECURITIES DEEMED TO BE AN ISSUANCE OF
ADDITIONAL SHARES OF COMMON STOCK.
(i) In the event the Company at any time or
from time to time after the Original Warrant Issue Date shall issue any Options
or Convertible Securities or shall fix a record date for the determination of
holders of any class of securities entitled to receive any such Options or
Convertible Securities, then the maximum number of shares (as set forth in the
instrument relating thereto without regard to any provisions contained therein
for a subsequent adjustment of such number) of Common Stock issuable upon the
exercise of such Options or, in the case of Convertible Securities and Options
therefor, the conversion or exchange of such Convertible Securities, shall be
deemed to be Additional Shares of Common Stock issued as of the time of such
issue or, in case such a record date shall have been fixed, as of the close of
business on such record date, provided that in any such case in which Additional
Shares of Common Stock are deemed to be issued:
(1) no further adjustment in the Stock
Purchase Price shall be made upon the subsequent issue of Convertible Securities
or shares of Common Stock upon the exercise of such Options or conversion or
exchange of such Convertible Securities;
(2) if such Options or Convertible
Securities by their terms provide, with the passage of time or otherwise, for
any increase or decrease in the consideration payable to the Company or in the
number of shares of Common Stock issuable upon the exercise, conversion or
exchange thereof, the applicable Stock Purchase Price
5.
computed upon the original issue thereof (or upon the occurrence of a record
date with respect thereto), and any subsequent adjustments based thereon, shall,
upon any such increase or decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such Options or the rights of
conversion or exchange under such Convertible Securities;
(3) upon the expiration of any such
Options or any rights of conversion or exchange under such Convertible
Securities which shall not have been exercised, the Stock Purchase Price
computed upon the original issue thereof (or upon the occurrence of a record
date with respect thereto), and any subsequent adjustments based thereon, shall,
upon such expiration, be recomputed as if:
a. in the case of Convertible
Securities or Options for Common Stock, the only Additional Shares of Common
Stock issued were the shares of Common Stock, if any, actually issued upon the
exercise of such Options or conversion or exchange of such Convertible
Securities and the consideration received therefor was the consideration
actually received by the Company for the issue of all such Options, whether or
not exercised, plus the consideration actually received by the Company upon such
exercise, or for the issue of all such Convertible Securities which were
actually converted or exchanged, plus the additional consideration, if any,
actually received by the Company upon such conversion or exchange, and
b. in the case of Options for
Convertible Securities, only the Convertible Securities, if any, actually issued
upon the exercise thereof were issued at the time of issue of such Options, and
the consideration received by the Company for the Additional Shares of Common
Stock actually deemed to have been then issued was the consideration actually
received by the Company for the issue of all such Options, whether or not
exercised, plus the consideration actually received by the Company upon the
issue of the Convertible Securities with respect to which such Options were
actually exercised.
(ii) No readjustment pursuant to clause (3)
above shall have the effect of increasing the Stock Purchase Price to an amount
which exceeds the lower of (x) such Stock Purchase Price on the original
adjustment date, or (y) such Stock Purchase Price that would have resulted from
any issuance of Additional Shares of Common Stock between the original
adjustment date and such readjustment date.
(iii) In the case of any Options which expire
by their terms not more than 30 days after the date of issue thereof, no
adjustment of the Stock Purchase Price shall be made until the expiration or
exercise of all such Options; provided, however, that this clause (iii) shall
not apply to Options that are issued within 30 days of a transaction described
under Section 3.4(c)(i) hereof.
(d) ADJUSTMENT OF STOCK PURCHASE PRICE UPON ISSUANCE
OF ADDITIONAL SHARES OF COMMON STOCK. In the event this Company shall issue
Additional Shares of Common Stock (including Additional Shares of Common Stock
deemed to be issued pursuant to Section 3.4(c)) without consideration or for a
consideration per share less than the Stock Purchase Price in effect on the date
of such issue, then and in such event, such Stock Purchase Price, as applicable,
shall be reduced, concurrently with such issue, to a price (calculated to the
nearest cent) determined by multiplying the Stock Purchase Price by a fraction:
6.
(i) the numerator of which shall be (i) the
number of shares of Common Stock outstanding immediately prior to the issuance
of such Additional Shares of Common Stock (calculated on a fully diluted basis
assuming the exercise or conversion of all Options, Warrants or Convertible
Securities which are exercisable or convertible at the time such calculation is
being made), plus (ii) the number of shares of Common Stock which the net
aggregate consideration, if any, received by the Company for the total number of
such Additional Shares of Common Stock so issued would purchase at the Stock
Purchase Price in effect immediately prior to such issuance, and
(ii) the denominator of which shall be (iii)
the number of shares of Common Stock outstanding immediately prior to the
issuance of such Additional Shares of Common Stock (calculated on a fully
diluted basis assuming the exercise or conversion of all Options, Warrants or
Convertible Securities which are exercisable or convertible at the time such
calculation is being made), plus (iv) the number of such Additional Shares of
Common Stock so issued.
(e) DETERMINATION OF CONSIDERATION. For purposes of
this Section 3.4, the consideration received by the Company for the issue of any
Additional Shares of Common Stock shall be computed as follows:
(i) CASH AND PROPERTY. Such consideration
shall:
(1) insofar as it consists of cash, be
computed at the aggregate amount of cash received by the Company excluding
amounts paid or payable for accrued interest or accrued dividends;
(2) insofar as it consists of property
other than cash, be computed at the fair value thereof at the time of such
issue, as determined in good faith by the Board of Directors; and
(3) in the event Additional Shares of
Common Stock are issued together with other shares or securities or other assets
of the Company for consideration which covers both, be the proportion of such
consideration so received, computed as provided in clauses (1) and (2) above, as
determined in good faith by the Board of Directors.
(ii) OPTIONS AND CONVERTIBLE SECURITIES. The
consideration per share received by the Company for Additional Shares of Common
Stock deemed to have been issued pursuant to Section 3.4(c)(i), relating to
Options and Convertible Securities, shall be determined by dividing:
(1) the total amount, if any, received
or receivable by the Company as consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such
consideration) payable to the Company upon the exercise of such Options or the
conversion or exchange of such Convertible Securities, or in the case of Options
for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities, by
7.
(2) the maximum number of shares of
Common Stock (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such number)
issuable upon the exercise of such Options or the conversion or exchange of such
Convertible Securities.
3.5 NOTICE OF ADJUSTMENT. Upon any adjustment of the Stock
Purchase Price or any increase or decrease in the number of shares purchasable
upon the exercise of this Warrant, the Company shall give written notice
thereof, by first class mail, postage prepaid, addressed to the registered
Holder of this Warrant at the address of such Holder as shown on the books of
the Company. The notice shall be signed by the Company's chief executive officer
and shall state the Stock Purchase Price resulting from such adjustment and the
increase or decrease, if any, in the number of shares purchasable at such price
upon the exercise of this Warrant, setting forth in reasonable detail the method
of calculation and the facts upon which such calculation is based.
3.6 OTHER NOTICES. If at any time:
(a) the Company shall declare any cash dividend upon
its Common Stock;
(b) the Company shall declare any dividend upon its
Common Stock payable in stock or make any special dividend or other distribution
to the holders of its Common Stock;
(c) the Company shall offer for subscription pro rata
to the holders of its Common Stock any additional shares of stock of any class
or other rights;
(d) there shall be any capital reorganization or
reclassification of the capital stock of the Company; or consolidation or merger
of the Company with, or sale of all or substantially all of its assets to,
another corporation; or
(e) there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Company;
then, in any one or more of said cases, the Company shall give, by first class
mail, postage prepaid, addressed to the Holder of this Warrant at the address of
such Holder as shown on the books of the Company, (i) at least twenty (20) days'
prior written notice of the date on which the books of the Company shall close
or a record shall be taken for such dividend, distribution or subscription
rights or for determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, and (ii) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up, at least
twenty (20) days' prior written notice of the date when the same shall take
place. Any notice given in accordance with the foregoing clause (i) shall also
specify, in the case of any such dividend, distribution or subscription rights,
the date on which the holders of Common Stock shall be entitled thereto. Any
notice given in accordance with the foregoing clause (ii) shall also specify the
date on which the holders of Common Stock shall be entitled to exchange their
Common Stock for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, winding-up or conversion, as the case may be.
8.
3.7 CERTAIN EVENTS. If any change in the outstanding Common
Stock of the Company or any other event occurs as to which the other provisions
of this Section 3 are not strictly applicable or if strictly applicable, would
not fairly protect the purchase rights of the Holder of the Warrant in
accordance with such provisions, then the Board of Directors of the Company
shall in good faith make an adjustment in the number and class of shares
available under the Warrant, the Stock Purchase Price or the application of such
provisions, so as to protect such purchase rights as aforesaid. The adjustment
shall be such as will give the Holder of the Warrant upon exercise for the same
aggregate Stock Purchase Price the total number, class and kind of shares as he
would have owned had the Warrant been exercised prior to the event and had he
continued to hold such shares until after the event requiring adjustment.
4. ISSUE TAX. The issuance of certificates for shares of Common Stock
upon the exercise of the Warrant shall be made without charge to the Holder of
the Warrant for any issue tax (other than any applicable income taxes) in
respect thereof; PROVIDED, HOWEVER, that the Company shall not be required to
pay any tax which 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
Holder of the Warrant being exercised.
5. CLOSING OF BOOKS. The Company will at no time close its transfer
books against the transfer of any warrant or of any shares of Common Stock
issued or issuable upon the exercise of any warrant in any manner which
interferes with the timely exercise of this Warrant.
6. NO VOTING OR DIVIDEND RIGHTS; LIMITATION OF LIABILITY. Nothing
contained in this Warrant shall be construed as conferring upon the holder
hereof the right to vote or to consent or to receive notice as a stockholder of
the Company or any other matters or any rights whatsoever as a stockholder of
the Company. No dividends or interest shall be payable or accrued in respect of
this Warrant or the interest represented hereby or the shares purchasable
hereunder until, and only to the extent that, this Warrant shall have been
exercised. No provisions hereof, in the absence of affirmative action by the
holder to purchase shares of Common Stock, and no mere enumeration herein of the
rights or privileges of the holder hereof, shall give rise to any liability of
such holder for the Stock Purchase Price or as a stockholder of the Company,
whether such liability is asserted by the Company or by its creditors.
7. WARRANT TRANSFERABLE. Subject to compliance with applicable federal
and state securities laws, this Warrant and all rights hereunder are
transferable, in whole or in part, without charge to the holder hereof (except
for transfer taxes), upon surrender of this Warrant properly endorsed; provided,
however, that no transfer of rights hereunder to purchase less than 25,000
shares of Common Stock shall be effective without the prior written consent of
the Company and any such purported transfer without the Company's consent shall
be void. Subject to the foregoing restrictions, each taker and holder of this
Warrant, by taking or holding the same, consents and agrees that this Warrant,
when endorsed in blank, shall be deemed negotiable, and that the holder hereof,
when this Warrant shall have been so endorsed, may be treated by the Company, at
the Company's option, and all other persons dealing with this Warrant as the
absolute owner hereof for any purpose and as the person entitled to exercise the
rights represented by this Warrant, or to the transfer hereof on the books of
the Company any notice to the contrary notwithstanding; but until such transfer
on such books, the Company may treat the registered owner hereof as the owner
for all purposes.
9.
8. RIGHTS AND OBLIGATIONS SURVIVE EXERCISE OF WARRANT. The rights and
obligations of the Company, of the holder of this Warrant and of the holder of
shares of Common Stock issued upon exercise of this Warrant, referred to in
Section 7 shall survive the exercise of this Warrant.
9. CALL OF WARRANT; EARLY TERMINATION.
9.1 GENERAL. This Warrant may be called by the Company at any
time after the closing sales price of the Company's Common Stock as reported on
the Nasdaq National Market for each trading day during any ninety (90) trading
day period exceeds $15.00 per share (subject to adjustment for stock splits,
stock dividends or reorganizations) during the Exercise Period. The Company may
thereafter exercise its right to call this Warrant by providing written notice
to the Holder of this Warrant, by first class mail, postage prepaid, addressed
to the Holder at the address of such Holder as shown on the books of the
Company, at least ten (10) days' prior to the day specified by the Company for
termination of this Warrant (the "Call Date"). Such notice shall specify the
Call Date and shall summarize the procedures for exercise of this Warrant prior
to the Call Date. If the Company elects to call this Warrant pursuant to this
Section 9.1, the Company must call the entire Warrant. This Warrant shall
terminate at 5:00 p.m. (Pacific Time) on the Call Date; and upon such
termination, the Holder shall have no further rights hereunder.
9.2 NET EXERCISE. In the event that this Warrant is called
pursuant to Section 9.1 at any time after August 24, 1999, in lieu of exercising
this Warrant by payment of cash, the Holder may elect to receive shares equal to
the value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Form of Subscription and notice of such
election in which event the Company shall issue to the Holder a number of shares
of 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 the Holder
Y = the number of shares of Common Stock
purchasable under the Warrant or, if only a
portion of the Warrant is being exercised,
the portion of the Warrant being canceled
(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 = Stock Purchase Price (as adjusted to the
date of such calculation)
10.
For the purposes of this Section 9, the fair market value of one share of
Common Stock shall be (a) two times the Stock Purchase Price during the first
and second years of the Exercise Period and (b) three times the Stock Purchase
Price during the third through sixth years of the Exercise Period. This net
exercise provision shall not be available in the event of any Call Date prior to
August 24, 1999.
10. MODIFICATION AND WAIVER. This Warrant and any provision hereof may
be changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
11. NOTICES. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof or the Company shall be
delivered or shall be sent by certified mail, postage prepaid, to each such
holder at its address as shown on the books of the Company or to the Company at
the address indicated therefor in the first paragraph of this Warrant or such
other address as either may from time to time provide to the other.
12. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon
any corporation succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company's assets. All of the obligations of
the Company relating to the Common Stock issuable upon the exercise of this
Warrant shall survive the exercise and termination of this Warrant. All of the
covenants and agreements of the Company shall inure to the benefit of the
successors and assigns of the holder hereof.
13. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description headings
of the several sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The corporate law
of the State of Delaware shall govern all issues concerning the relative rights
of the Company and the Holder. All other questions concerning the construction,
validity and interpretation of this Warrant shall be construed and interpreted
according to the law of the State of California, without giving effect to its
conflict of law provisions.
14. LOST WARRANTS. The Company represents and warrants to the Holder
hereof that upon receipt of evidence reasonably satisfactory to the Company of
the loss, theft, destruction, or mutilation of this Warrant and, in the case of
any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation upon
surrender and cancellation of such Warrant, the Company, at its expense, will
make and deliver a new Warrant, of like tenor, in lieu of the lost, stolen,
destroyed or mutilated Warrant.
15. FRACTIONAL SHARES. No fractional shares shall be issued upon
exercise of this Warrant. The Company shall, in lieu of issuing any fractional
share, pay the holder entitled to such fraction a sum in cash equal to such
fraction multiplied by the then effective Stock Purchase Price.
11.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed by its officers, thereunto duly authorized this 3rd day of August,
1998.
CORVAS INTERNATIONAL, INC.
By: /s/ XXXXXXX X. XXXXX
--------------------
XXXXXXX X. XXXXX
President and Chief Executive Officer
Attest:
/s/ XXXX X. XXXXX
-----------------------------------
Xxxx X. Xxxxx, Corporate Secretary
EXHIBIT A
FORM OF SUBSCRIPTION
Date: _________________
Corvas International, Inc.
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Chief Executive Officer
Ladies and Gentlemen:
The undersigned hereby elects to exercise the warrant issued to it by
Corvas International, Inc. (the "Company") and dated _________________,
1998 (the "Warrant") and to purchase thereunder
__________________________________ shares of the Common Stock of the
Company (the "Shares") at a purchase price of _________ Dollars ($____)
per Share or an aggregate purchase price of
__________________________________ Dollars ($__________) (the "Purchase
Price").
Pursuant to the terms of the Warrant the undersigned has delivered the
Stock Purchase Price herewith in full in cash or by certified check or wire
transfer.
Very truly yours,
_________________________________
By ______________________________
Title ___________________________
A-1.
EXHIBIT B
FORM OF ASSIGNMENT
(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:
________________________________________________________________________________
whose address is: ______________________________________________________________
Dated:___________________________________________
Holder's Signature:______________________________
Holder's Address:________________________________
Signature Guaranteed:___________________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the fact 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.
B-1.
