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Exhibit 4.19
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SECURITIES
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE
PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT
NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL EXECUTIVE OFFICE.
Issued: January 5, 1994 CSW-8
RIBOGENE, INC.
COMMON STOCK PURCHASE WARRANT
1. Number and Price of Shares Subject to Warrant.
(a) Exercise of the Warrant. Subject to the terms and conditions
herein set forth, Xxx Xxxxxxxx and Associates, Inc. (the "PURCHASER"), or a
permitted holder hereof, shall be entitled to purchase from RiboGene, Inc., a
California corporation (the "COMPANY"), at any time and from time to time after
the date hereof but on or before the earlier to occur of (A) the date that is
five (5) years from the date hereof, (B) the closing of the Company's sale of
all or substantially all of its assets or the acquisition of the Company by
another entity by means of merger or other transaction as a result of which all
shareholders of the Company immediately prior to such acquisition in the
aggregate possess a minority of the voting power of the acquiring entity
immediately following such acquisition (the "ACQUISITION") to the extent that
the acquiror in such transaction requires, as a condition of such Acquisition,
the exercise or termination of all or part of this Warrant on or before the
closing of such Acquisition, which requirement shall be set forth in a writing
signed by the acquiror and delivered to the holder hereof, or (C) the date of
the closing of the Company's first underwritten public offering of securities at
an aggregate offering price of not less than 7,500,000 and a price per share of
at least $5.00, as presently constituted (the "INITIAL PUBLIC OFFERING") to the
extent that the managing underwriter(s) in such transaction requires, as a
condition of such underwriting, the exercise or termination of all or part of
this Warrant on or before the closing of such Initial Public Offering, which
requirement shall be set forth in a writing signed by the underwriter and
delivered to the holder hereof, up to 13,000 shares (which number of shares is
subject to adjustment as described below) of fully paid and nonassessable Common
Stock of the Company (the "SHARES") upon surrender hereof at the principal
office of the Company, and upon payment of the purchase price for such shares
(the "PURCHASE PRICE"), determined as the product of the number of shares of
Common Stock acquired upon exercise hereof and the Warrant Price (as defined
below), at said office in cash, by check, by wire transfer or by cancellation of
indebtedness, or upon a net exercise of this Warrant as provided in Sections 7
or 8 below. The Company shall give notice to
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the Purchaser of the Initial Public Offering or Acquisition at least thirty (30)
days prior to the effective date thereof.
(b) Warrant Price. Subject to adjustment as hereinafter provided,
the exercise price for one share of Common Stock (or such securities as may be
substituted for one share of Common Stock pursuant to the provisions hereinafter
set forth) shall be $3.00. The exercise price for one share of Common Stock (or
such securities as may be substituted for one share of Common Stock pursuant to
the provisions hereinafter set forth) payable from time to time upon the
exercise of this Warrant (whether such price be the price specified above or an
adjusted price determined as hereinafter provided) is referred to herein as the
"WARRANT PRICE".
2. Adjustment of Warrant Price and Number of Shares. The number and kind
of securities issuable upon the exercise of this Warrant shall be subject to
adjustment from time to time and the Company agrees to provide notice upon the
happening of certain events as follows:
(a) Adjustment of Warrant Price upon Issuance of Additional Stock.
The Warrant Price shall be subject to adjustment from time to time as follows:
(i) (A) Upon each issuance by the Company of any
Additional Stock (as defined below), after the date of this Warrant, without
consideration or for a consideration per share less than the Warrant Price in
effect immediately prior to the issuance of such Additional Stock, the Warrant
Price in effect immediately prior to each such issuance shall forthwith (except
as otherwise provided in this Section 2(a)) be adjusted to a price determined by
multiplying the Warrant Price by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such issuance
plus the number of shares of Common Stock which could be purchased were the then
Warrant Price used instead of the purchase price actually paid for such
Additional Stock (calculated by dividing the total consideration (before
deduction of costs) to be received by the Company in such issuance by the then
Warrant Price) and the denominator of which shall be the number of shares of
Common Stock outstanding immediately prior to such issuance plus the number of
shares of such Additional Stock issued in such issuance. For purpose of this
Subsection (a), all Shares of Common Stock issuable upon conversion of
outstanding Preferred Stock or upon exercise of this Warrant, that certain
warrant issued to Hyline Laboratories, Inc. of even date herewith, or any
subsequent warrant issued or deemed issued to Hyline Laboratories, Inc. within
90 days of the date hereof shall be deemed to be outstanding and, immediately
after any Additional Stock is deemed issued, such Additional Stock shall be
deemed outstanding.
(B) No adjustment of the Warrant Price shall be
made in an amount less than one cent per share, provided that any adjustments
which are not required to be made by reason of this sentence shall be carried
forward and shall be either taken into account in any subsequent adjustment made
prior to 3 years from the date of the event giving rise to the adjustment being
carried forward, or shall be made at the end of 3 years from the date of the
event giving rise to the adjustment being carried forward. Except to the limited
extent provided for in subsections 2(a)(i)(E)(3) and (E)(4), no adjustment of
the Warrant Price pursuant to this subsection 2(a)(i) shall have the effect of
increasing the Warrant Price above the Warrant Price in effect immediately prior
to such adjustment.
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(C) In the case of issuance by the Company of Common
Stock for cash, the consideration shall be deemed to be the amount of cash paid
therefor before deducting any reasonable discounts, commissions or other
expenses allowed, paid or incurred by the Company for any underwriting or
otherwise in connection with the issuance and sale thereof.
(D) In the case of issuance by the Company of Common
Stock for a consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair value as determined by the Board
of Directors of the Company irrespective of any accounting treatment.
(E) In the case of the issuance (whether before, on
or after the date of this Warrant) of options to purchase or rights to subscribe
for Common Stock, securities by their terms convertible into or exchangeable for
Common Stock or options to purchase or rights to subscribe for such convertible
or exchangeable securities, the following provisions shall apply for all
purposes of this subsection 2(a)(i);
1. The aggregate maximum number of
shares of Common Stock deliverable upon exercise (to the extent then
exercisable) of such options to purchase or rights to subscribe for Common Stock
shall be deemed to have been issued at the time such options or rights were
issued and for a consideration equal to the consideration (determined in the
manner provided in subsections 2(a)(i)(C) and (a)(i)(D)), if any, received by
the Company upon issuance of such options or rights plus the minimum exercise
price provided in such options or rights (without taking into account potential
antidilution adjustments) for the Common Stock covered thereby.
2. The aggregate maximum number of
shares of Common Stock deliverable upon conversion of or in exchange for (to the
extent then convertible or exchangeable) convertible or exchangeable securities
or upon exercise of options to purchase or rights to subscribe for such
convertible or exchangeable securities and subsequent conversion or exchange
thereof shall be deemed to have been issued at the time such securities were
issued or such options or rights were issued and for a consideration equal to
the consideration, if any, received by the Company for any such securities and
related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if
any, to be received by the Company (without taking into account potential
antidilution adjustments) upon the conversion or exchange of such securities or
the exercise of any related options or rights (the consideration in each case to
be determined in the manner provided in subsections 2(a)(i)(C) and 2(a)(i)(D)).
3. In the event of any change in the
number of shares of Common Stock deliverable or in the consideration payable to
the Company under such options or rights or under such convertible or
exchangeable securities, including but not limited to, a change resulting from
antidilution provisions thereof, the Warrant Price, to the extent in any way
affected by or computed using such options, rights or securities, shall be
adjusted based upon the actual issuance of Common Stock or any payment of such
consideration upon the exercise of any such options or rights or the conversion
or exchange of such securities.
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4. Upon the expiration of any such options or
rights, the termination of any such options or rights to convert or exchange, or
the expiration of any options or rights related to such convertible or
exchangeable securities, the Warrant Price, to the extent in any way affected by
or computed using such options, rights or securities or options or rights
related to such securities, shall be recomputed to reflect the issuance of only
the number of shares of Common Stock (and convertible or exchangeable securities
which remain in effect) actually issued upon the exercise of such options or
rights, upon the conversion or exchange of such securities or upon the exercise
of the options or rights related to such securities.
5. The number of shares of Common Stock
deemed issued and the consideration deemed paid therefor pursuant to subsections
2(a)(i)(E)(I) and (2) shall be appropriately adjusted to reflect any change,
termination or expiration of the type described in either subsection
2(a)(i)(E)(3) or (4).
(ii) "ADDITIONAL STOCK" shall mean any shares of Common
Stock issued (or deemed to have been issued pursuant to subsection 2(a)(i)(E))
by this Company after the date of this Warrant other than (A) shares of Common
Stock issued upon conversion of the Company's Preferred Stock issued prior to
the date of this Warrant, (B) shares of Common Stock issued to employees or
directors of or consultants and advisers to the Company or any subsidiary
pursuant to stock purchase or stock option plans or other similar arrangements
approved by the Company's Board of Directors, (C) shares of Common Stock issued
upon the exercise of warrants or options issued by the Company prior to the date
of this Warrant, or (D) shares of Common Stock issued or issuable upon exercise
or conversion of warrants to purchase shares of the capital stock of the Company
issued in connection with equipment lease financing transactions or bank
financing transactions unanimously approved by the Board of Directors, where the
issuance of such warrants is not principally for the purpose of raising
additional equity capital for the Company.
(b) Adjustment for Dividends in Stock. In case at any time or from
time to time on or after the date hereof the holders of the Common Stock of the
Company (or any shares of stock or other securities at the time receivable upon
the exercise of this Warrant shall have received, or, on or after the record
date fixed for the determination of eligible shareholders, shall have become
entitled to receive, without payment therefor, other or additional securities or
other property of the Company by way of dividend or distribution, then and in
each case, the holder of this Warrant shall, upon the exercise hereof, be
entitled to receive, in addition to the number of shares of Common Stock
receivable thereupon, and without payment of any additional consideration
therefor, the amount of such other or additional securities or other property of
the Company which such holder would hold on the date of such exercise had it
been the holder of record of such Common Stock on the date hereof and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares and/or all other additional securities or
other property receivable by it as aforesaid during such period, giving effect
to all adjustments called for during such period by this paragraph (b) and
paragraphs (a), (c) and (d) of this Section 2.
(c) Adjustment for Reclassification or Reorganization. In case of
any reclassification or change of the outstanding securities of the Company or
of any reorganization of the Company (or any other corporation the stock or
securities of which are at the time
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receivable upon the exercise of this Warrant) on or after the date hereof, then
and in each such case the Company shall give the holder of this Warrant at least
thirty (30) days notice of the proposed effective date of such transaction, and
the holder of this Warrant, upon the exercise hereof at any time after the
consummation of such reclassification, change or reorganization, shall be
entitled to receive, in lieu of the stock or other securities and property
receivable upon the exercise hereof prior to such consummation, the stock or
other securities or property to which such holder would have been entitled upon
such consummation if such holder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in paragraphs (a), (b)
and (d) of this Section 2.
(d) Stock Splits and Reverse Stock Splits. If at any time on or
after the date hereof the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall thereby be proportionately reduced
and the number of shares receivable upon exercise of the Warrant shall thereby
be proportionately increased; and, conversely, if at any time on or after the
date hereof the outstanding number of shares of Common Stock shall be combined
into a smaller number of shares, the Warrant Price in effect immediately prior
to such combination shall thereby be proportionately increased and the number of
shares of Common Stock receivable upon exercise of this Warrant shall thereby be
proportionately decreased.
3. No Fractional Shares. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company shall pay cash equal to
the product of such fraction multiplied by the fair market value of one share of
Common Stock on the date of exercise, as determined in good faith by the
Company's Board of Directors.
4. Shareholder Rights and Obligations. This Warrant as such shall not
entitle its holder to any of the rights or bind its holder to any of the
obligations of a shareholder of the Company until the holder has exercised this
Warrant in accordance with Section 6 hereof. The shares of Common Stock issued
upon the exercise of this Warrant shall be entitled to the rights, preferences
and privileges afforded to the other shares of Common Stock as set forth in the
Company's Articles of Incorporation, as may be amended from time to time in
accordance with applicable law.
5. Reservation of Stock. The Company covenants that during the period this
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant. The Company agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Common Stock upon the exercise of this
Warrant.
6. Procedure for Exercise. This Warrant may be exercised by its holder by
the surrender of this Warrant and the executed Notice of Exercise attached
hereto at the principal office of the Company, accompanied by payment in full of
the Purchase Price of the Shares purchased thereby, as described above, or may
be net exercised as described below. This Warrant shall be deemed to have been
exercised immediately prior to the close of business on
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the date of its surrender for exercise as provided above, and the person
entitled to receive the Shares or other securities issuable upon such exercise
shall be treated for all purposes as the holder of such shares of record as of
the close of business on such date. As promptly as practicable, the Company
shall issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of full shares of Common Stock
issuable upon such exercise, together with cash in lieu of any fraction of a
share as provided above. If this Warrant shall have been only partially
exercised, the Company shall also deliver to the holder either (a) a statement
executed by an officer of the Company setting forth the shares remaining subject
to purchase under this Warrant or (b) a replacement Warrant identical to this
Warrant except that the Shares purchasable thereunder shall be only those Shares
not purchased upon exercise of this Warrant, at the Company's option.
7. Exercise upon Initial Public Offering.
(a) Holder Rights; Company Option. In the event that the managing
underwriter(s) in the Initial Public Offering require the exercise or
termination of this Warrant as a condition to their underwriting, the holder
shall have the right to exercise one or any combination of the rights of the
holder set forth in Sections (b) and (c) below in such combination as the
Company, in its sole and complete discretion, shall determine in a notice
delivered to the holder hereof not later than promptly following the meeting of
the pricing committee of the Company's Board of Directors with the managing
underwriter(s) of the Initial Public Offering in which the offering is sized and
priced. All actions taken by the holder hereof pursuant to this Section 7 shall
be conditioned upon the closing of the Initial Public Offering. If for some
reason the holder hereof has taken action under this Section 7 and such offering
does not close within one hundred twenty (120) days after such action is taken,
the holder's actions hereunder shall be considered to have been rescinded and
this Warrant shall continue in full force and effect until otherwise terminated
or exercised.
(b) Exercise and Registration. If this Warrant shall be exercised
as a result of such requirement by the managing underwriter(s) for the Initial
Public Offering, then upon such exercise in accordance with the terms stated in
Section I above, the holder shall be entitled, to the extent permitted by the
Company under this Section 7, to include in the Initial Public Offering that
number of Shares such that the proceeds to the holder, net of underwriting
commission or discounts ("PROCEEDS"), shall equal not less than the total
Purchase Price of this Warrant actually paid by the holder upon exercise under
this subsection (b) (the "INCLUSION RIGHT"). In lieu of payment of the Purchase
Price to be paid upon exercise under this subsection (b), the holder and the
Company may direct the underwriters to pay that portion of the proceeds from the
Initial Public Offering otherwise payable to the holder directly to the Company
in satisfaction of the holder's Purchase Price obligation.
(c) Right to Convert. If this Warrant shall be exercised as a
result of such requirement by the managing underwriter(s) for the Initial Public
Offering, then the holder hereof shall be entitled, to the extent permitted by
the Company under this Section 7, to so exercise by converting this Warrant or
portion hereof (the "CONVERSION RIGHT") into shares of Common Stock, without
payment by such holder of any cash or other consideration, as provided below
immediately prior to its expiration after the Company has given the Purchaser
notice of
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the Initial Public Offering pursuant to Section 1 above, subject to the
restrictions set forth in subsection (e) hereof. In connection with any exercise
of the Conversion Right, this Warrant shall represent the right to subscribe for
and acquire the number of Shares (rounded to the next highest integer) (the
"CONVERTED WARRANT SHARES") equal to
(i) the number of Shares being converted by the holder
hereunder, as specified by the holder pursuant to subsection (d) below (the
"Total Number"), multiplied by
(ii) a fraction, (A) the numerator of which is the excess
of the Fair Market Value of one Share, as determined pursuant to subsection (f)
below, over the Warrant Price then in effect, and (B) the denominator of which
is the Fair Market Value of one Share, all determined as of the Conversion Date.
(d) Exercise of Conversion Right. To the extent exercisable, the
Conversion Right set forth in subsection (c) above may be exercised by the
holder hereof by the surrender of this Warrant prior to its expiration and after
the Company shall have given the Purchaser notice pursuant to Section 1 of the
Initial Public Offering, at the principal office of the Company together with a
written statement specifying that the holder thereby intends to exercise the
Conversion Right immediately prior to the expiration of this Warrant and
indicating the number of shares subject to this Warrant which are being
surrendered (referred to in subsection (c) hereof as the Converted Warrant
Shares) in exercise of the Conversion Right. Such conversion shall be effective
immediately prior to the expiration of this Warrant (the "CONVERSION DATE").
Certificates for the shares of Common Stock issuable upon exercise of the
Conversion Right (or any other securities deliverable in lieu thereof under
Section 2(b) above) and, if applicable, a new Warrant of like tenor evidencing
the balance of the Shares remaining subject to this Warrant shall be issued as
of the Conversion Date and shall be delivered to the holder immediately
following the Conversion Date.
(e) Restrictions on Conversion Right. In the event that the
Conversion Right contained herein would, at any time this Warrant remains
outstanding, be deemed by the Company's independent certified public accountants
to trigger a charge to the Company's earnings for financial reporting purposes,
then the Conversion Right under this Section 7 shall automatically terminate
upon the Company's written notice to the holder of such adverse accounting
treatment.
(f) Determination of Fair Market Value. For purposes of this
Section 7, fair market value of a share of Common Stock as of the Conversion
Date shall mean the value of the shares of Common Stock, as provided in the
"Price to Public" specified in the final prospectus with respect to such
offering.
(g) Combination of Rights. To the extent that the Company limits
the exercise of the Conversion Right to a portion of this Warrant or if the
Conversion Right is terminated under Section 7(e) above, it shall allow the
holder hereof to exercise the Inclusion Right to the extent necessary to produce
Proceeds equal to the aggregate purchase price of those Shares not eligible for
conversion under the Conversion Right. Similarly, to the extent
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that the Company limits the exercise of the Inclusion Right to a portion of this
Warrant, it shall allow the holder hereof to exercise the Conversion Right with
respect to those Shares the purchase price for which would not be accounted for
through such limited exercise of the Inclusion Right.
(h) Demonstration of Exercise Under Section 7. Examples of a full
and partial exercise of the rights set forth in this Section 7 are attached
hereto as Attachment 1. Such examples are limited by their stated assumptions
and should be used for reference purposes only.
8. Net Exercise Upon Acquisition or Termination.
(a) In the event that the acquiror in the Acquisition requires the
exercise or termination of this Warrant as a condition to such Acquisition, the
holder shall have the right to exercise the rights of the holder set forth in
Sections 7(c), 7(d) and 7(f) above (without reference to Section 7(e)),
interpreting all references therein to "Initial Public Offering" to mean
"Acquisition" and substituting the following language for the determination of
fair market value set forth in Section 7(f): "fair market value of a share of
Common Stock as of the Conversion Date shall mean the effective per share
consideration to be received in an Acquisition by holders of the Common Stock,
which price shall be as specified in the agreement entered into with respect to
such Acquisition, or if no such price is set forth in the agreement concerning
the Acquisition, then as reasonably determined in good faith by the Company's
Board of Directors upon a review of all relevant factors." All actions taken by
the holder hereof pursuant to this Section 8(a) shall be conditioned upon the
closing of the Acquisition. If for some reason the holder hereof has taken
action under this Section 8(a) and such transaction does not close within one
hundred twenty (120) days after such action is taken, the holder's actions
hereunder shall be considered to have been rescinded and this Warrant shall
continue in full force and effect until otherwise terminated or exercised.
(b) If this Warrant shall not have been exercised or terminated
prior to the date five (5) years from original issuance date of this Warrant,
then this Warrant shall be deemed to have been automatically converted pursuant
to the provisions set forth in Sections. 7(c), 7(d) and 7(f) above (without
reference to the first sentence in Section 7(d) or to Section 7(e)), ignoring
all references therein to "Initial Public Offering", any notice deliverable
thereupon or any other language or right specific thereto other than the right
to convert this Warrant into shares of Common Stock. For purposes of this
Section 8(b), the following language shall be substituted for the determination
of fair market value set forth in Section 7(f): "fair market value of a share of
Common Stock as of the Conversion Date shall mean, at the holder's option,
either (i) the price per share at which the Company's Preferred Stock (initially
convertible into one share of Common Stock) was last sold by the Company prior
to the Conversion Date, or (ii) the value determined by a mutually acceptable
investment advisor within thirty (30) days after the Conversion Date upon a
review of all relevant factors. The holder shall indicate in a written notice to
the Company not later than the Conversion Date which of options (i) or (ii) the
holder wishes to accept or pursue. The fees and expenses of the investment
advisor, if applicable, shall be borne equally by the Company and the holder,
provided, however, that if the Company's Preferred Stock (initially convertible
into one share of Common Stock) was last sold by the
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Company within eighteen (18) months prior to the Conversion Date, the fees and
expenses of the investment advisor, if applicable, shall be borne solely by the
holder."
9. Certificate of Adjustment. Whenever the Warrant Price or number or
type of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company setting forth the nature of
such adjustment and a brief statement of the facts requiring such adjustment.
10. Proposed Transfers. This Warrant may not be sold, assigned, pledged
or otherwise transferred by the holder hereof to a third party other than in
compliance with all terms of this Section 10.
(a) This Warrant may be sold, assigned, pledged or otherwise
transferred by the holder hereof to a majority-owned subsidiary of the Purchaser
or an entity holding a majority of the Purchaser's outstanding voting securities
or to the members of the immediate family of such majority shareholder, if an
individual, or to trusts for their benefit.
(b) If the holder hereof wishes to sell, assign, pledge or
otherwise transfer this Warrant or any portion thereof to a party(ies) other
than a party set forth in subsection 9(a) above, the holder shall first offer
the Warrant to the Company on the following terms:
(i) The transferring holder shall first deliver to the
Company a written offer (the "OFFER") to sell at the price and on the terms
offered to the third-party transferee(s) with respect to the offered portion(s)
of this Warrant (collectively, the "OFFERED PORTION"), along with a statement
(the "OFFER STATEMENT") setting forth the holder's intention to so transfer and
the name and address of the third-party transferee(s).
(ii) For a period of thirty (30) days after the receipt of
the Offer (the "OFFER PERIOD"), the Company shall have the right, but not the
obligation, to purchase all of the Offered Portion on the terms set forth in the
Offer. If the Company chooses to so exercise this purchase right, it shall
deliver a written notice of such intent to the transferring holder and must so
purchase all (and not less than all) of the security(ies) so offered within
thirty (30) days of the receipt of such notice by the transferring holder.
(iii) To the extent that the Company declines to exercise
its right to purchase all of the Offered Portion within the Offer Period, the
transferring holder may sell, assign, pledge or otherwise transfer the Offered
Portion to the third-party transfers) set forth in the Offer Statement at a
price not less than, and upon terms not more favorable to such transferee(s)
than the terms set forth in the Offer, provided, however, that if the
transferring holder has not completed such transfer within one hundred twenty
(120) days after the Offer Period lapses, such transfer shall again become
subject to the terms of this subsection 10(b).
(iv) The right of purchase set forth in this subsection
10(b) may be assigned by the Company without the consent of the holder hereof
Notice of such assignment shall be given to the holder hereof.
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(c) Other than transfers of this Warrant or any Shares received
upon exercise hereof to a transferee or transferees set forth in subsection (a)
above, prior to any proposed transfer of this Warrant consistent with the
foregoing or the Shares received upon the exercise hereof (collectively, the
"SECURITIES"), unless there is in effect a registration statement under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), covering the proposed
transfer, the holder thereof shall give written notice to the Company of such
holder's intention to effect such transfer. Each such notice shall describe the
manner and circumstances of the proposed transfer in sufficient detail, and
shall, if the Company so requests, be accompanied (except in transactions in
compliance with Rule 144) by either (i) an unqualified written opinion of legal
counsel who shall be reasonably satisfactory to the Company addressed to the
Company and reasonably satisfactory in form and substance to the Company's
counsel, to the effect that the proposed transfer of the Securities may be
effected without registration under the Securities Act, or (ii) a "no action"
letter from the Commission to the effect that the transfer of such Securities
without registration will not result in a recommendation by the staff of the
Commission that action be taken with respect thereto, whereupon the holder of
the Securities shall be entitled to transfer the Securities in accordance with
the terms of the notice delivered by the holder to the Company. Each certificate
evidencing the Securities transferred as above provided shall bear the
appropriate restrictive legend set forth above, except that such certificate
shall not bear such restrictive legend if in the opinion of counsel for the
Company such legend is not required in order to establish compliance with any
provisions of the Securities Act.
11. Merger. If the Company shall at any time merge with or into another
corporation in a transaction, that is not an Acquisition, the holder of this
Warrant will thereafter receive, upon the exercise of this Warrant in accordance
with its terms, the securities or properties to which the holder of the number
of shares of Common Stock then deliverable upon exercise of this Warrant would
have been entitled upon such merger.
12. HSR Act and Rules. In the event the Company or any holder hereof
reasonably believes that the exercise of this Warrant and the issuance of shares
of Common Stock (or any shares of stock or other securities at the time
receivable upon the exercise of this Warrant) requires prior compliance with the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the rules and
regulations promulgated thereunder (the "HSR ACT AND RULES"), any such exercise
shall be contingent upon such prior compliance, and, subject to effecting such
compliance, be effective as of the date that this Warrant is surrendered for
exercise pursuant to Section 6 above.
13. Miscellaneous. This Warrant shall be governed by the laws of the State
of California (without reference to conflict of laws principles). The headings
in this Warrant are for purposes of convenience of reference only, and shall not
be deemed to constitute a part hereof. Neither this Warrant nor any term hereof
may be changed, waived, discharged or terminated orally but only by an
instrument in writing signed by the Company and the registered holder hereof.
All notices and other communications from the Company to the holder of this
Warrant shall be delivered personally or mailed by first class mail, postage
prepaid, to the address furnished to the Company in writing by the last holder
of this Warrant who shall have furnished an address to the Company in writing,
and if mailed shall be deemed given three days after deposit in the U.S. Mail.
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IN WITNESS WHEREOF, this Common Stock Purchase Warrant No. CSW-8 is issued
this 5th day of January, 1994.
RIBOGENE, INC.,
a California corporation
By: [SIG]
-------------------------------------
Title: President and CEO
----------------------------------
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12
NOTICE OF EXERCISE
OF RIBOGENE, INC.
COMMON STOCK PURCHASE WARRANT
To: ______________________________
______________________________
______________________________
Attn: ________________________
1. The undersigned hereby elects to purchase ____________ shares of
___________ Stock of ____________ pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name or names as are specified
below:
Name: ______________________________
Address: ___________________________
___________________________
___________________________
3. The undersigned represents that the aforesaid shares being acquired
for the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned has
no present intention of distributing or reselling such shares, other than
distributions to members of the undersigned immediate family or to trusts for
their benefit.
________________________________
(Signature)
________________________
(Date)
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13
ATTACHMENT 1
EXAMPLES OF EXERCISE OF CONVERSION AND INCLUSION RIGHTS
EXAMPLE #1
Assumptions:
------------
1. Full exercise of Conversion Right.
2. Variables:
X = shares acquirable upon exercise of conversion right
Y = Total Number (to be converted 2,000,000
A = Fair Market Value = 5
B = Warrant Price = 3
Conversion Right Calculation:
-----------------------------
X = Y * (A-B) --> X = 2,000,000 * (5-3) --> X = 800,000 shares
----- -----
B 5
--------------------------------------------------------------------------------
EXAMPLE #2
Assumptions:
------------
1. 1/2 exercise of Conversion Right and 1/2 cash exercise and full exercise of
Inclusion Right.
2. Underwriting discounts and commissions have not been taken into
consideration.
3. Variables:
- For Conversion Right Calculation:
X = shares acquirable upon exercise of right
Y = Total Number (to be converted) = 1,000,000
A = Fair Market Value = 5
B = Warrant Price - 3
- For Cash Exercise and Inclusion Right:
X = shares included in Initial Public Offering
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Y = shares cash exercised = 1,000,000
Z = fully paid shares owned by holder after cash exercise and
inclusion
A = Fair Market Value = 5
B = Warrant Price = 3
Calculations:
-------------
Conversion Right Calculation:
X = Y * (A-B) --> X = 1,000,000 * (5-3) --> X = 400,000 shares
----- -----
B 5
Cash Exercise and Inclusion Right Calculation:
X = (Y * B) --> X = (1,000,000 * 3) --> X = 600,000 shares
------- --------------
A 5
Z = Y-X --> Z = 1,000,000 - 600,000 --> Z = 400,000
--------------------------------------------------------------------------------
ACCORDINGLY, THE HOLDER IS LEFT WITH 800,000 FULLY PAID SHARES UNDER EACH
OF THE FOREGOING EXAMPLES, REGARDLESS OF WHETHER THE CONVERSION RIGHT WAS
EXERCISED RV FULL (800,000 SHARES) OR WHETHER EACH RIGHT WAS EXERCISED EQUALLY
(400,000 + 400,000 SHARES).
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