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Exhibit 4.1
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT.
Gensia, Inc.
COMMON STOCK PURCHASE WARRANT
This certifies that, for good and valuable consideration, Gensia,
Inc., a Delaware corporation (the "Company"), grants to Domain Partners III,
L.P., a Delaware limited partnership ("Domain"), or its registered,
permitted assigns (together with Domain, the "Warrantholder"), the right to
subscribe for and purchase from the Company 50,000 validly issued, fully
paid and nonassessable shares (the "Warrant Shares") of the Company's Common
Stock, $.01 par value (the "Common Stock"), at the purchase price per share
of $4.00 (the "Exercise Price"), exercisable at any time and from time to
time during the period (the "Exercise Period") commencing on the date hereof
and ending on the fifth anniversary of the date hereof, all subject to the
terms, conditions and adjustments herein set forth.
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1. DURATION AND EXERCISE OF WARRANT; LIMITATION ON EXERCISE; PAYMENT OF
TAXES.
1.1 DURATION AND EXERCISE OF WARRANT.
(a) CASH EXERCISE. This Warrant may be exercised by the
Warrantholder by (i) the surrender of this Warrant to the Company, with a
duly executed Exercise Form specifying the number of Warrant Shares to be
purchased, during normal business hours on any Business Day during the
Exercise Period and (ii) the delivery of payment to the Company, for the
account of the Company, by cash, wire transfer of immediately available
funds to a bank account specified by the Company, or by certified or bank
cashier's check, of the Exercise Price for the number of Warrant Shares
specified in the Exercise Form in lawful money of the United States of
America. The Company agrees that such Warrant Shares shall be deemed to be
issued to the Warrantholder as the record holder of such Warrant Shares as
of the close of business on the date on which this Warrant shall have been
surrendered and payment made for the Warrant Shares as aforesaid. A stock
certificate or certificates for the Warrant Shares specified in the Exercise
Form shall be delivered to the Warrantholder as promptly as practicable, and
in any event within 10 days, thereafter. The stock certificate or
certificates so delivered shall be in denominations of 100 shares each or
such lesser or greater denominations as may be reasonably specified by the
Warrantholder in the Exercise Form. If this Warrant shall have been
exercised only in part, the Company shall, at the time of delivery of the
stock certificate or certificates, 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. No adjustments shall be made on Warrant Shares issuable on the
exercise of this Warrant for any cash dividends paid or payable to holders
of record of Common Stock prior to the date as of which the Warrantholder
shall be deemed to be the record holder of such Warrant Shares.
(b) NET ISSUE EXERCISE. In lieu of exercising this Warrant pursuant
to Section 1.1(a), this Warrant may be exercised by the Warrantholder by the
surrender of this Warrant to the Company, with a duly executed Exercise Form
marked to reflect Net Issue Exercise and specifying the number of Warrant
Shares to be purchased, during normal business hours on any Business Day
during the Exercise Period. The Company agrees that such Warrant Shares
shall be deemed to be issued to the Warrantholder as the record holder of
such Warrant Shares as of the close of business on the date on which this
Warrant shall have been surrendered as aforesaid. Upon such exercise, the
Warrantholder shall be entitled to receive shares equal to the value of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant
to the Company together with notice of such election in which event the
Company shall issue to Warrantholder a number of shares of the Company's
Common Stock computed as of the date of surrender of this Warrant to the
Company using the following formula:
X = (Y x (A-B))/ A
Where X = the number of shares of Common Stock to be issued to
Warrantholder under this Section 1.1(b);
Y = the number of shares of Common Stock otherwise purchasable under
this Warrant (at the date of such calculation);
A = the fair market value of one share of the Company's Common Stock
(at the date of such calculation);
B = the Exercise Price (as adjusted to the date of such
calculation).
(c) FAIR MARKET VALUE. For purposes of Section 1.1(b) fair market
value of one share of the Company's Common Stock shall mean:
(i) the closing price per share of the Company's Common Stock
on the principal national securities exchange on which the Common Stock is
listed or admitted to trading or,
(ii) if not listed or traded on any such exchange, the last reported
sales price per share on the Nasdaq National Market or the Nasdaq Small-Cap
Market (collectively, "Nasdaq") or,
(iii) if not listed or traded on any such exchange or Nasdaq,
the average of the bid and asked price per share as reported in the "pink
sheets" published by the National Quotation Bureau, Inc. (the "pink sheets")
or,
(iv) if such quotations are not available, the fair market
value per share of the Company's Common Stock on the date such notice was
received by the Company as reasonably determined by the Board of Directors
of the Company.
1.2 PAYMENT OF TAXES. The issuance of certificates for Warrant
Shares shall be made without charge to the Warrantholder for any stock
transfer or other issuance tax in respect thereto; PROVIDED, HOWEVER, that
the Warrantholder shall be required to pay any and all taxes 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 Warrantholder as
reflected upon the books of the Company.
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1.3 DIVISIBILITY OF WARRANT. This Warrant may be divided into
warrants exercisable for 5000 Warrant Shares or multiples thereof (or such
lesser or greater denominations as may be reasonably requested by the
Warrantholder), upon surrender at the principal office of the Company,
without charge to any Warrantholder. Upon such division, subject to the
restrictions on transfer referred to in Section 2, the Warrants may be
transferred of record as the then Warrantholder may specify without charge
to such Warrantholder (other than any applicable transfer taxes).
1.4 INFORMATION. Upon receipt of a written request from a
Warrantholder, the Company agrees to deliver promptly to such Warrantholder
a copy of its current financial statements and to provide such other
publicly available information concerning the business and operations of the
Company as such Warrantholder may reasonably request in order to assist the
Warrantholder in evaluating the merits and risks of exercising the Warrant
and to make an informed investment decision in connection with such
exercise.
2. RESTRICTIONS ON TRANSFER; RESTRICTIVE LEGENDS.
2.1 RESTRICTIONS ON TRANSFER; COMPLIANCE WITH SECURITIES Laws. This
Warrant and the Warrant Shares issued upon the exercise of the Warrant may
not be transferred or assigned in whole or in part without compliance with
all applicable federal and state securities laws by the transferor and
transferee (including the delivery of investment representation letters and
legal opinions reasonably satisfactory to the Company, if such are requested
by the Company). The Warrantholder, by acceptance hereof, acknowledges that
this Warrant and the Warrant Shares to be issued upon exercise hereof are
being acquired solely for the Warrantholder's own account and not as a
nominee for any other party, and for investment, and that the Warrantholder
will not offer, sell or otherwise dispose of this Warrant or any Warrant
Shares to be issued upon exercise hereof except under circumstances that
will not result in a violation of the Securities Act or any state securities
laws. Upon exercise of this Warrant, the Warrantholder shall, if requested
by the Company, confirm in writing, in a form satisfactory to the Company,
that the Warrant Shares so purchased are being acquired solely for the
Warrantholder's own account and not as a nominee for any other party, for
investment, and not with a view toward distribution or resale.
2.2 RESTRICTIVE LEGENDS. Except as otherwise permitted by this
Section 2, each Warrant shall (and each Warrant issued upon direct or
indirect transfer or in substitution for any Warrant issued pursuant to
Section 4 shall) be stamped or otherwise imprinted with a legend in
substantially the following form:
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"THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF
THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT."
Except as otherwise permitted by this 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:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FILED UNDER SUCH ACT OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT."
Notwithstanding the foregoing, the Warrantholder may require the
Company to issue a Warrant or a stock certificate for Warrant Shares, in
each case without a legend, if (i) such Warrant or such Warrant Shares, as
the case may be, have been registered for resale under the Securities Act or
sold pursuant to Rule 144 under the Securities Act (or a successor rule
thereto) or (ii) the Warrantholder has received an opinion of counsel
reasonably satisfactory to the Company 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 covenants and agrees that all Warrant Shares which are
issued upon the exercise of this Warrant will, upon issuance, be validly
issued, fully paid and nonassessable and free from all taxes, liens,
security interests, charges and other encumbrances with respect to the issue
thereof, other than taxes in respect of any transfer occurring
contemporaneously with such issue. The Company further covenants and agrees
that, during the Exercise Period, 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 and will, at its expense, upon each
such reservation of shares, procure such listing of such shares of Common
Stock (subject to issuance or notice of issuance) as then may be required on
all stock exchanges on which the Common Stock is then listed or on Nasdaq.
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4. EXCHANGE, LOSS OR DESTRUCTION OF WARRANT.
Subject to the terms and conditions hereof, including the restrictions
on transfer in Section 2, upon surrender of this Warrant to the Company with
a duly executed Assignment Form and funds sufficient to pay any transfer
tax, the Company shall, without charge, execute and deliver a new Warrant or
Warrants of like tenor in the name of the assignee named in such Assignment
Form and this Warrant shall promptly be canceled. 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 such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new
Warrant of like tenor. The term "Warrant" as used in this Agreement shall
be deemed to include any Warrants issued in substitution or exchange for
this Warrant.
5. OWNERSHIP OF WARRANT.
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 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 as provided in
Section 4.
6. CERTAIN ADJUSTMENTS.
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. If at any time prior to the exercise of this
Warrant in full (i) the Company shall fix a record date for the issuance of
any stock dividend payable in shares of Common Stock or (ii) the number of
shares of Common Stock shall have been increased by a subdivision or split-up
of shares of Common Stock, then, on the record date fixed for the
determination of holders of Common Stock entitled to receive such dividend
or immediately after the effective date of subdivision or split-up, as the
case may be, the number of shares of Common Stock to be delivered upon
exercise of this Warrant will increased so that the Warrantholder will be
entitled to receive the number of shares of Common Stock that such
Warrantholder would have owned immediately following such action had this
Warrant been exercised immediately prior thereto, and the Exercise Price
will be adjusted as provided below in paragraph (f).
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(b) COMBINATION OF STOCK. If at any time prior to the exercise of
this Warrant in full the number of shares of Common Stock outstanding shall
have been decreased by a combination of the outstanding shares of Common
Stock, then, immediately after the effective date of such combination, the
number of shares of Common Stock to be delivered upon exercise of this
Warrant will be decreased so that the Warrantholder thereafter will be
entitled to receive the number of shares of Common Stock that such
Warrantholder would have owned immediately following such action had this
Warrant been exercised immediately prior thereto, and the Exercise Price
will be adjusted as provided below in paragraph (f).
(c) REORGANIZATION, ETC. If at any time prior to the exercise of
this Warrant in full any capital reorganization of the Company, or any
reclassification of the Common Stock, or any consolidation of the Company
with or merger of the Company with or into any other person or any sale,
lease or other transfer of all or substantially all of the assets of the
Company to any other person, shall be effected in such a way that the
holders of Common Stock shall be entitled to receive stock, other securities
or assets (whether such 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 stock, other
securities or assets receivable upon such reorganization, reclassification,
consolidation, merger or sale, lease or other transfer 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, reclassification,
consolidation, merger or sale, lease or other transfer, subject to
adjustments that shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 6.
(d) FRACTIONAL SHARES. No fractional shares of Common 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 in respect of such fractional interest
in an amount equal to that fractional interest of the then current Closing
Price per share of Common Stock.
(e) CARRYOVER. Notwithstanding any other provision of this
Section 6, 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 1% 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 which
together with any adjustments so carried forward shall amount to 1% or more
of the number of shares to be so delivered.
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(f) EXERCISE PRICE ADJUSTMENT. Whenever the number of Warrant
Shares purchasable upon the exercise of the Warrant is adjusted, as herein
provided, the Exercise Price 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.
(g) NO DUPLICATE ADJUSTMENTS. Notwithstanding anything else to the
contrary contained herein, in no event will an adjustment be made under the
provisions of this Section 6 to the number of Warrant Shares issuable upon
exercise of this Warrant or the Exercise Price for any event if an
adjustment having substantially the same effect to the Warrantholder as any
adjustment that otherwise would be made under the provisions of this
Section 6 is made by the Company for any such event to the number of shares
of Common Stock (or other securities) issuable upon exercise of this
Warrant.
6.2 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Section 6.1,
no adjustment in respect of any dividends shall be made during the term of
the Warrant or upon the exercise of this Warrant.
6.3 NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or
the Exercise Price of such Warrant Shares is adjusted, as herein provided,
the Company shall promptly mail by first class, postage prepaid, to the
Warrantholder, notice of such adjustment or adjustments and a certificate of
the chief financial officer of the Company setting forth the number of
Warrant Shares and the Exercise Price of such Warrant Shares after 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. REGISTRATION RIGHTS.
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7.1 REGISTRATION.
(a) Upon the request made after the first anniversary of the date
hereof and prior to the second anniversary of such date by the holders of
60% of the Warrant Shares originally issued to Domain pursuant to this
Warrant, the Company shall prepare and file a registration statement with
the SEC under the Securities Act to register the resale of the Warrant
Shares by the Warrantholder (the "Registration Statement") and shall use
commercially reasonable efforts, including the filing of one or more
amendments or supplements to the Registration Statement, to obtain
effectiveness of the Registration Statement under the Securities Act. The
Company is obligated to effect only one such registration pursuant to the
terms of this Warrant. If the Company shall furnish to the holders of
Warrant Shares initiating such request for registration a certificate signed
by the President of the Company stating that in the good faith judgment of
the Board of Directors of the Company it would be seriously detrimental to
the Company and its stockholders for such registration to be effected at
such time, the Company shall have the right to defer the filing of the
Registration Statement for a period of not more than 180 days after receipt
of the request of such holders.
(b) The Company shall pay all Registration Expenses (as defined
below) in connection with any registration, qualification or compliance
under this Section 7.1, and the Warrantholder shall pay all Selling Expenses
(as defined below) and other expenses that are not Registration Expenses
relating to the Warrant Shares resold by the Warrantholder. "Registration
Expenses" shall mean all expenses, except for Selling Expenses, incurred by
the Company in complying with the registration provisions herein described,
including, without limitation, all registration, qualification and filing
fees, printing expenses, escrow fees, fees and disbursements of counsel for
the Company, blue sky fees and expenses and the expense of any special
audits incident to or required by any such registration. "Selling Expenses"
shall mean all selling commissions, underwriting fees and stock transfer
taxes applicable to the Warrant Shares, fees and disbursements of counsel
for the Warrantholder, and all other expenses incurred by Warrantholder or
any transferee of Warrantholder in connection with sales of the Warrant
Shares.
(c) In the case of the registration effected by the Company pursuant
to these registration provisions, the Company shall use its commercially
reasonable efforts to: (i) keep the Registration Statement effective for a
period of 90 days (or, if earlier, until such date as all of the Warrant
Shares have been resold); (ii) prepare and file with the SEC such amendments
and supplements to the Registration Statement and the prospectus used in
connection with the Registration Statement as may be necessary to comply
with the provisions of the Securities Act with respect to the disposition of
all of the Warrant Shares covered by the Registration Statement; (iii)
furnish such number of prospectuses and other documents incident thereto,
including any amendment of or supplement to the prospectus, as a
Warrantholder from time to time may reasonably request; (iv) provide a
transfer agent and registrar for all of the Warrant Shares registered
pursuant to the Registration Statement; and (v) file the documents required
of the Company and otherwise use its commercially reasonable efforts to
maintain requisite blue sky clearance in all United States jurisdictions
specified in writing by the Warrantholder; provided, however, that the
Company shall not be required to qualify to do business or consent to
service of process in any state in which it is not now so qualified or has
not so consented.
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(d) The Company shall furnish to the Warrantholder upon request a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary in order to facilitate the public sale or
other disposition of all or any of the Shares held by the Warrantholder.
(e) With a view to making available to the Warrantholder the
benefits of Rule 144 promulgated under the Securities Act ("Rule 144") and
any other rule or regulation of the SEC that may at any time permit the
Warrantholder to sell Warrant Shares to the public pursuant to a
registration statement, the Company covenants and agrees to: (i) make and
keep public information available, as those terms are understood and defined
in Rule 144, until the earlier of (A) the third anniversary of the date
hereof or (B) such date as all of the Warrant Shares shall have been resold;
(ii) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and Exchange Act; and
(iii) furnish to the Warrantholder upon request, as long as the
Warrantholder owns any Warrant Shares (A) a written statement by the Company
that it has complied with the reporting requirements of the Securities Act
and the Exchange Act, (B) a copy of the most recent annual or quarterly
report of the Company, and (C) such other information as may be reasonably
requested in order to avail the Warrantholder of any rule or regulation of
the SEC that permits the selling of any such Warrant Shares pursuant to
Rule 144.
The Company may require the Warrantholder to furnish to the Company
such information regarding the distribution of the Warrant Shares and such
other information as may otherwise be required by the Securities Act to be
included in the Registration Statement.
7.2 INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Warrantholder from and against any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) to which the Warrantholder
may become subject (under the Securities Act or otherwise) insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon, any untrue statement of a material
fact contained in the Registration Statement, on the effective date thereof,
or in any amendment or supplement thereto, or arise out of any failure by
the Company to fulfill any undertaking included in the Registration
Statement or any amendment or supplement thereto, and the Company will,
except as provided below, as incurred, reimburse the Warrantholder for any
legal or other expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim; provided, however,
that the Company shall not be liable in any such case to the extent that
such loss, claim, damage or liability arises out of, or is based upon (i) an
untrue statement made in such Registration Statement or any amendment or
supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Warrantholder
specifically for use in preparation of the Registration Statement; or
(ii) an untrue statement which is subsequently corrected in a supplement or
amendment to the Registration Statement and which supplement or amendment
has been delivered by the Company to the Warrantholder via overnight courier
at least three trading days prior to the consummation of the transaction out
of which arose such claim, damage or liability.
(b) The Warrantholder agrees to indemnify and hold harmless the
Company from and against any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) to which the Company may become
subject (under the Securities Act or otherwise) insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon an untrue statement made in such
Registration Statement or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by
or on behalf of the Warrantholder specifically for use in preparation of the
Registration Statement or any amendment or supplement thereto.
(c) Promptly after receipt by any indemnified person of a notice of
a claim or the beginning of any action in respect of which indemnity is to
be sought against an indemnifying person pursuant to this Section 7.2, such
indemnified person shall notify the indemnifying person in writing of such
claim or of the commencement of such action. No indemnification provided
for in Section 7.2(a) or 7.2(b) shall be available to any party who shall
fail to give notice as provided in this Section 7.2(c) if the party to whom
notice was not given was unaware of the proceeding to which such notice
would have related and was prejudiced by the failure to give such notice,
but the omission so to notify such indemnifying party of any such action,
suit or proceeding shall not relieve it from any liability that it may have
to any indemnified party for contribution otherwise than under this Section
7.2. Subject to the provisions hereinafter stated, in case any such action
shall be brought against an indemnified person and the indemnifying person
shall have been notified thereof, the indemnifying person shall be entitled
to participate therein, and, to the extent that it shall wish, to assume the
defense thereof, with counsel reasonably satisfactory to the indemnified
person. After notice from the indemnifying person to such indemnified
person of the indemnifying person's election to assume the defense thereof,
the indemnifying person shall not be liable to such indemnified person for
any legal expenses subsequently incurred by such indemnified person in
connection with the defense thereof; provided, however, that if there exists
or shall exist a conflict of interest that would make it inappropriate in
the reasonable judgment of the indemnified person for the same counsel to
represent both the indemnified person and such indemnifying person or any
affiliate or associate thereof, the indemnified person shall be entitled to
retain one law firm at the expense of such indemnifying person.
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(d) If the indemnification provided for in this Section 7.2 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative fault of the Company on the one hand
and the Warrantholder on the other in connection with the matters that
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Warrantholder on the other
and the parties' relevant intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Warrantholder agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and the Warrantholder under this
Section 7.2 shall be in addition to any liability which the Company and the
Warrantholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Company or the
Warrantholder within the meaning of the Securities Act.
7.3 TRANSFERABILITY. The rights and obligations under this
Section 7 shall be binding upon and available to subsequent permitted
transferees of this Warrant and the Warrant Shares.
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8. NOTICES OF CORPORATE ACTION.
In the event of
(a) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any consolidation
or merger involving the Company and any other party, including without
limitation, any Change of Control, or
(b) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company, the Company will mail to the Warrantholder a
notice specifying (i) the date or expected 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 any such dividend, distribution or right, (ii) the
date or expected date on which any such reorganization, reclassification,
recapitalization, consolidation, merger, Change of Control, dissolution,
liquidation or winding-up is to take place and the time, if any such time is
to be fixed, as of which the holders of record of Common Stock (or other
securities) shall be entitled to exchange their shares of Common Stock (or
other securities) for the securities or other property deliverable upon such
reorganization, reclassification, recapitalization, consolidation, merger,
Change of Control, dissolution, liquidation or winding-up and (iii) that in
the event of a Change of Control, the Warrants are exercisable immediately
prior to the consummation of such Change of Control. Such notice shall be
mailed at least 20 days prior to the date therein specified, in the case of
any date referred to in the foregoing subdivision (i), and at least 20 days
prior to the date therein specified, in the case of the date referred to in
the foregoing subdivision (ii).
9. DEFINITIONS.
As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
ASSIGNMENT FORM: an Assignment Form in the form annexed hereto as
Exhibit B.
BUSINESS DAY: any day other than a Saturday, Sunday or a day on which
national banks are authorized by law to close in the City of New York, State
of New York.
CHANGE OF CONTROL: shall mean (i) the consolidation of the Company
with or merger of the Company with or into any other person in which the
Company is not the surviving corporation, (ii) the sale of all or
substantially all of the assets of the Company to any other person or
(iii) any sale or transfer of any capital stock of the Company after the
date of this Agreement, following which 60% of the combined voting power of
the Company becomes beneficially owned by one person or group acting
together. For purposes of this definition, "group" shall have the meaning
as such term is used in Section 13(d)(1) under the Exchange Act.
13
COMPANY: Gensia, Inc., a Delaware corporation.
EXCHANGE ACT: the Securities Exchange Act of 1934, as amended, or any
successor federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934, as amended, shall
include a reference to a comparable section, if any, of any successor
federal statute.
EXERCISE FORM: an Exercise Form in the form annexed hereto as
Exhibit A.
EXERCISE PRICE: the meaning specified on the cover of this Warrant,
as such price may be adjusted pursuant to Section 6 hereof.
Nasdaq: the meaning specified in Section 1.1(c)(ii).
SEC: the Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act,
whichever is the relevant statute for the particular purpose.
SECURITIES ACT: the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act of 1933, as amended, shall include
a reference to the comparable section, if any, of any successor federal
statute.
WARRANTHOLDER: the meaning specified on the cover of this Warrant.
WARRANT SHARES: the meaning specified on the cover of this Warrant,
subject to the provisions of Section 6.
10. MISCELLANEOUS.
10.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement
between the Company and the Warrantholder with respect to this Warrant.
10.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company and the Warrantholder and
their respective heirs, legal representatives, 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 heirs, legal representatives, successors or assigns, any rights,
remedies, obligations or liabilities under or by reason of this Warrant.
14
10.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or
amended except by an instrument or instruments in writing signed by the
Company and the Warrantholder. Either the Company or the Warrantholder may,
by an instrument in writing, waive compliance by the other party with any
term or provision of this Warrant on the part of such other party hereto to
be performed or complied with. The waiver by any such party of a breach of
any term or provision of this Warrant shall not be construed as a waiver of
any subsequent breach.
10.4 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.
10.5 FURTHER ASSURANCES. Each of the Company and the Warrantholder
shall do and perform all such further acts and things and execute and
deliver all such other certificates, instruments and documents as the
Company or the Warrantholder may, at any time and from time to time,
reasonably request in connection with the performance of any of the
provisions of this Agreement.
10.6 NOTICES. All notices and other communications required or
permitted to be given under this Warrant shall be in writing and shall be
deemed to have been duly given if delivered personally or sent by United
States mail, postage prepaid, to the parties hereto at the following
addresses or to such other address as any party hereto shall hereafter
specify by notice to the other party hereto:
(a) if to the Company, addressed to:
Gensia, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
with a copy to:
Pillsbury Madison & Sutro LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Xx., Esq.
(b) if to the Warrantholder, addressed to the address of such
Warrantholder appearing on the books of the Company.
Except as otherwise provided herein, all such notices and communications
shall be deemed to have been received on the date of delivery thereof, if
delivered personally, or on the third Business Day after the mailing
thereof.
15
10.7 SEPARABILITY. Any term or provision of this Warrant which 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.
10.8 GOVERNING LAW. This Warrant shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State
applicable to agreements made and to be performed entirely within such
State.
10.9 NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in
this Warrant shall be determined as conferring 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.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer.
Dated: April __, 1996.
GENSIA, INC.
By _____________________________
Title __________________________ EXHIBIT A
A-1
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT.
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase Warrant Shares and (check one):
____ herewith tenders payment for _______ of the Warrant Shares to
the order of Gensia, Inc. in the amount of $_________ in
accordance with the terms of this Warrant; or
____ herewith tenders this Warrant for _______ Warrant Shares
pursuant to the Net Issue Exercise provisions of Section 1.1(b)
of the Warrant.
The undersigned requests that a certificate (or certificates) for such
Warrant Shares be registered in the name of the undersigned and that such
certificate (or certificates) be delivered to the undersigned's address
below.
In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the Warrant Shares are being acquired solely for the
account of the undersigned and not as a nominee for any other party, or for
investment, and that the undersigned will not offer, sell or otherwise
dispose of any such Warrant Shares except under circumstances that will not
result in a violation of the Securities Act of 1933, as amended, or any
state securities laws.
Dated: ___________________.
Signature
--------------------------------
(Print Name)
--------------------------------
(Street Address)
--------------------------------
(City) (State) (Zip Code)
If said number of shares shall not be all the shares purchasable under
the within Warrant, a new Warrant is to be issued in the name of said
undersigned for the balance remaining of the shares purchasable thereunder.
B-1
EXHIBIT B
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT.
ASSIGNMENT FORM
(To be executed only upon transfer of this Warrant)
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto ____________________ (the
"Assignee") the right represented by such Warrant to purchase __________
Warrant Shares and all other rights of the Warrantholder with respect
thereto under the within Warrant, and appoints _________________ as Attorney
to make such transfer on the books of Gensia, Inc. maintained for such
purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the
Assignee acknowledges that this Warrant and the Warrant Shares to be issued
upon exercise hereof are being acquired for investment and that the Assignee
will not offer, sell or otherwise dispose of this Warrant or any Warrant
Shares to be issued upon exercise hereof except under circumstances that
will not result in a violation of the Securities Act of 1933, as amended, or
any state securities laws. Further, the Assignee has acknowledged that upon
exercise of this Warrant, the Assignee shall, if requested by the Company,
confirm in writing, in a form satisfactory to the Company, that the Warrant
Shares so purchased are being acquired for investment and not with a view
toward distribution or resale.
Dated: ____________________.
Signature ______________________________
______________________________
(Print Name)
______________________________
(Xxxxxx Xxxxxxx)
______________________________
(City) (State)(Zip Code)
