THIS WARRANT HAS BEEN, AND THE SHARES OF COMMON STOCK WHICH MAY BE RECEIVED
PURSUANT TO THE EXERCISE OF THIS WARRANT WILL BE, ACQUIRED SOLELY FOR INVESTMENT
AND NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION
THEREOF. NEITHER THIS WARRANT NOR SUCH SHARES (TOGETHER, THE "SECURITIES") HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH DISPOSITION IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT AND OF ANY
APPLICABLE STATE SECURITIES LAWS.
NO. WA1-60 ISSUED: APRIL 8, 2004
A-1 WARRANT TO PURCHASE COMMON STOCK
----------
THIS CERTIFIES THAT, for good and valuable consideration, CD Investment
Partners, Ltd. (the "HOLDER") is entitled to purchase from Adventrx
Pharmaceuticals, Inc., a Delaware corporation (the "COMPANY"), seventy-five
thousand (75,000) fully paid and nonassessable shares of Common Stock, par value
$0.001 per share ("COMMON Stock"), of the Company (as adjusted pursuant to
Section 3 hereof) (the "WARRANT SHARES") at a price per share equal to Two
Dollars ($2.00) (as adjusted pursuant to Section 3 hereof) (the "EXERCISE
PRICE"), subject to the provisions and upon the terms and conditions hereinafter
set forth.
1. METHOD OF EXERCISE; PAYMENT.
(a) Exercise Period. The purchase right represented by this Warrant may be
exercised in whole or part by the Holder during the term of this Warrant (as set
forth in Section 9 hereof) at any time after the Commencement Date, as defined
below, by the surrender of this Warrant (with the notice of exercise form
attached hereto as Exhibit A (the "NOTICE OF EXERCISE") duly executed) to the
principal office of the Company. If this Warrant shall have been exercised in
part, the Company shall, at the time of delivery of the certificate or
certificates representing Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased shares of Common
Stock called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant, or at the request of the Holder, appropriate
notation may be made on this Warrant and the same returned to the Holder.
(b) Exercise. Upon exercise of this Warrant, the Holder shall pay the
Company an amount equal to the product of (x) the Exercise Price multiplied by
(y) the total number of Warrant Shares purchased pursuant to this Warrant, by
wire transfer or certified check payable to the order of the Company or, at any
time following the first anniversary of the Warrant Date, if there is not an
effective Registration Statement (as defined in the Registration Rights
Agreement, dated as of the Warrant Date, between the Company and the Holder (the
"REGISTRATION RIGHTS AGREEMENT")) with respect to all of the Warrant Shares,
then at the option of the Holder, such amount may be paid by the surrender of a
portion of shares of Common Stock then held by the Holder or issuable upon such
exercise of this Warrant, which shall be valued and credited toward such amount
due to the Company for the exercise of the Warrant based upon the Current Market
Price of the Common Stock. The person or persons in whose name(s) any
certificate(s) representing the Warrant Shares shall be issuable upon exercise
of this Warrant shall be deemed to have become the holder(s) of record of, and
shall be treated for all purposes as the record holder(s) of, the Warrant Shares
represented thereby (and such Warrant Shares shall be deemed to have been
issued) immediately prior to the close of business on the date upon which this
Warrant is exercised.
"CURRENT MARKET PRICE" means, in respect of any share of Common Stock on
any date herein specified,
(1) if there shall not then be a public market for the Common Stock, the
higher of
(a) the book value per share of Common Stock at such date, and
(b) the value per share of Common Stock at such date as determined in good
faith by the Board,
or
(2) if there shall then be a public market for the Common Stock, the
higher of (x) the book value per share of Common Stock at such date, and (y) the
average of the daily market prices for the 10 consecutive trading days
immediately before such date. The daily market price (the "DAILY MARKET PRICE")
for each such trading day shall be (i) the closing price on such day on the
principal stock exchange (including Nasdaq) on which such Common Stock is then
listed or admitted to trading, or quoted, as applicable, (ii) if no sale takes
place on such day on any such exchange, the last reported closing price on such
day as officially quoted on any such exchange (including Nasdaq), (iii) if the
Common Stock is not then listed or admitted to trading on any stock exchange,
the last reported closing bid price on such day in the over-the-counter market,
as furnished by the National Association of Securities Dealers Automatic
Quotation System or the National Quotation Bureau, Inc., (iv) if neither such
corporation at the time is engaged in the business of reporting such prices, as
furnished by any similar firm then engaged in such business, or (v) if there is
no such firm, as furnished by any member of the National Association of
Securities Dealers, Inc. (the "NASD") selected mutually by the holder of this
Warrant and the Company or, if they cannot agree upon such selection, as
selected by two such members of the NASD, one of which shall be selected by
holder of this Warrant and one of which shall be selected by the Company.
(c) Stock Certificates. In the event of the exercise of this Warrant,
certificates for the Warrant Shares so purchased shall be delivered to the
Holder within a reasonable time after exercise, but in no case later than the
date that is three business days following receipt by the Company of a Notice of
Exercise duly completed and executed.
2. STOCK FULLY PAID; RESERVATION OF SHARES. All of the Warrant Shares issuable
upon the exercise of the rights represented by this Warrant will, upon issuance
and receipt of the Exercise Price therefor, be fully paid and nonassessable, and
-2-
free from all preemptive rights, rights of first refusal or first offer, taxes,
liens and charges with respect to the issuance thereof. During the period within
which the rights represented by this Warrant may be exercised, the Company shall
at all times have authorized and reserved for issuance a sufficient number of
shares of its Common Stock to provide for the exercise of the rights represented
by this Warrant.
3. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number and kind of
Warrant Shares purchasable upon the exercise of this Warrant and the Exercise
Price therefor shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
(a) Reclassification, Consolidation or Reorganization. In case of any
reclassification of the Common Stock (other than a change in par value, or as a
result of a subdivision or combination), or in case of any consolidation or
merger of the Company with or into another corporation (other than a Change of
Control, as defined below) (any of which is a "REORGANIZATION TRANSACTION"), the
Company, or such successor corporation as the case may be, shall execute a new
warrant, providing that the Holder shall have the right to exercise such new
warrant, and procure upon such exercise and payment of the same aggregate
Exercise Price, in lieu of the Warrant Shares theretofore issuable upon exercise
of this Warrant, the kind and amount of shares of stock, other securities, money
and property as would be payable for the Warrant Shares issuable upon exercise
of this Warrant as if such Warrant Shares were outstanding on the consummation
of the Reorganization Transaction. For purposes of this Warrant, the term
"CHANGE OF CONTROL" shall mean (i) any acquisition of the Company by means of
merger, acquisition, or other form of corporate reorganization in which
outstanding shares of the Company are exchanged for securities or other
consideration issued, or caused to be issued, by the acquiring corporation or
its subsidiary or parent (other than a reincorporation transaction or change of
domicile) and pursuant to which the holders of the outstanding voting securities
of the Company immediately prior to such consolidation, merger or other
transaction fail to hold equity securities representing a majority of the voting
power of the Company or surviving entity immediately following such
consolidation, merger or other transaction (excluding voting securities of the
acquiring corporation held by such holders prior to such transaction) or (ii) a
sale of all or substantially all of the assets of the Company.
(b) Stock Splits, Dividends and Combinations. In the event that the
Company shall at any time subdivide the outstanding shares of Common Stock, or
shall issue a stock dividend on its outstanding shares of Common Stock, the
number of Warrant Shares issuable upon exercise of this Warrant immediately
prior to such subdivision or to the issuance of such stock dividend shall be
proportionately increased, and the Exercise Price shall be proportionately
decreased, and in the event that the Company shall at any time combine the
outstanding shares of Common Stock, the number of Warrant Shares issuable upon
exercise of this Warrant immediately prior to such combination shall be
proportionately decreased, and the Exercise Price shall be proportionately
increased, effective at the close of business on the date of such subdivision,
stock dividend or combination, as the case may be.
-3-
(c) Issuance of Additional Shares.
(i) If at any time after June 30, 2004, the Company shall issue or
sell any shares of its Common Stock (other than Excluded Shares (as
that term is defined below), "ADDITIONAL SHARES") in exchange for
consideration in an amount per Additional Share less than the Exercise
Price at the time the Additional Shares are issued or sold, then the
Exercise Price immediately prior to such issue or sale shall be
reduced to a price determined by dividing:
(1) an amount equal to the sum of (a) the number of shares of
Common Stock outstanding immediately prior to such issue or sale
multiplied by the then existing Exercise Price, plus (b) the
consideration, if any, received by the Company upon such issue or
sale, by
(2) the total number of shares of Common Stock outstanding
immediately after such issue or sale.
(ii) The provisions of Section 3(c)(i) shall not apply to any deemed
issuance of Additional Shares for which an adjustment is provided
under Section 3(a) or 3(b). No adjustment of the number of shares of
Common Stock acquirable upon exercise of this Warrant shall be made
under Section 3(c) upon the issuance of any shares of Common Stock
which are issued pursuant to the exercise of any warrants or other
subscription or purchase rights or pursuant to the exercise of any
conversion or exchange rights in any convertible securities, if any
such adjustment shall previously have been made upon the issuance of
such warrants or other rights or upon the issuance of such convertible
securities (or upon the issuance of any warrant or other rights
therefor) pursuant to Section 3(d).
For purposes of this Warrant the term "EXCLUDED SHARES" means: (i) shares of
Common Stock issuable or issued after the Closing Date (as defined in the
Purchase Agreement) to officers, employees, consultants or directors of the
Company directly or pursuant to a stock purchase, stock option, restricted stock
or other written compensation plan or agreement approved by the Board of
Directors of the Company (the "BOARD"); (ii) shares of Common Stock issued or
issuable after the Closing Date, primarily for non-equity financing purposes and
as approved by the Board, to financial institutions or lessors in connection
with commercial credit arrangements, equipment financings or similar
transactions or to vendors of goods or services or customers; (iii) shares of
Common Stock issuable upon (a) exercise of warrants, options, notes or other
rights to acquire securities of the Company, in each case, outstanding on the
issuance date of this Warrant (the "WARRANT DATE"), (b) conversion of shares of
the Company's Preferred Stock, par value $0.01 per share, outstanding on the
Warrant Date, (c) exchange of promissory notes issued by the Company which are
outstanding on the Warrant Date, (iv) the Shares (as such term is defined in the
Common Stock and Warrant Purchase Agreement, dated as of the Warrant Date,
between the Company and the Holder (the "PURCHASE AGREEMENT")); (v) the Warrants
(as such term is defined in the Purchase Agreement); (vi) capital stock or
warrants or options to purchase capital stock issued in connection with bona
fide acquisitions, mergers or similar transactions, the terms of which are
approved by the Board; (vii) shares of Common Stock issued or issuable to
-4-
licensors of technology of the Company to pay expenses, royalties or milestone
payments for which the Company is obligated under any licensing or related
agreement; (viii) shares of Common Stock issuable or issued pursuant to stock
splits, stock dividends and the like, or (ix) shares of Common Stock issued or
issuable by way of dividend or other distribution on shares of Common Stock
issued pursuant to clauses (i) - (viii) above.
(d) Issuance of Common Stock Equivalents.
(i) If at any time while this Warrant is outstanding the Company shall
issue or sell any warrants or other rights to subscribe for or
purchase any additional shares of Common Stock or any securities
convertible into shares of Common Stock (other than the Additional
Shares) (collectively, "COMMON STOCK EQUIVALENTS"), whether or not the
rights to exchange or convert thereunder are immediately exercisable,
and the effective price per share for which Common Stock is issuable
upon the exercise, exchange or conversion of such Common Stock
Equivalents shall be less than the Exercise Price in effect
immediately prior to the time of such issue or sale, then the Exercise
Price shall be adjusted as provided in Section 3(c) on the basis that
the maximum number of additional shares of Common Stock issuable
pursuant to all such Common Stock Equivalents shall be deemed to have
been issued and outstanding and the Company shall have received all of
the consideration payable therefor, if any, as of the date of the
actual issuance of such Common Stock Equivalents. No further
adjustments to the current Warrant Price shall be made under this
Section 3(d) upon the actual issue of such Common Stock upon the
exercise, conversion or exchange of such Common Stock Equivalents.
(ii) Upon the expiration or termination of any such Common Stock
Equivalents, the Exercise Price, to the extent in any way affected by
or computed using such Common Stock Equivalents, shall be recomputed
to reflect the issuance of the total number of shares of Common Stock
(and convertible or exchangeable securities which remain in effect)
actually issued upon the exercise, exchange or conversion of such
Common Stock Equivalents to the extent that this Warrant is then
outstanding.
(e) Other Action Affecting Common Stock. In case at any time or from time
to time the Company shall take any action in respect of its Common Stock, other
than the payment of dividends permitted by Section 3 or any other action
described in Section 3, then, unless such action will not have a materially
adverse effect upon the rights of the Holder, the number of shares of Common
Stock or other stock into which this Warrant is exercisable and/or the purchase
price thereof shall be adjusted in such manner as may be equitable in the
circumstances.
(f) Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Exercise Price, the Company, at its expense, shall
promptly compute such adjustment or readjustment in accordance with the terms
hereof and prepare and furnish to the Holder of this Warrant a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. The Company shall, upon the
-5-
written request at any time of the Holder of this Warrant, furnish or cause to
be furnished to such Holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the Exercise Price at the time in effect and
(iii) the number of shares of Common Stock and the amount, if any, or other
property which at the time would be received upon the exercise of Warrants owned
by such Holder.
(g) Notice of Corporate Action. If at any time:
(i) the Company shall take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend (other than a cash
dividend payable out of earnings or earned surplus legally available for the
payment of dividends under the laws of the jurisdiction of incorporation of the
Company) or other distribution, or any right to subscribe for or purchase any
evidences of its indebtedness, any shares of stock of any class or any other
securities or property, or to receive any other right, or
(ii) there shall be any capital reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or any
consolidation or merger of the Company with, or any sale, transfer or other
disposition of all or substantially all the property, assets or business of the
Company to, another corporation, or
(iii) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give to the Holder (i)
at least 10-days' prior written notice of the date on which a record date shall
be selected for such dividend, distribution or right or for determining rights
to vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up, and (ii) in the case of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up, at least 10-days' prior written notice of the date when the same shall take
place. Such notice in accordance with the foregoing clause also shall specify
(i) the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, the date on which the holders of Common Stock
shall be entitled to any such dividend, distribution or right, and the amount
and character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
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 Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up. Each such written notice shall be sufficiently given if addressed to the
Holder at the last address of the Holder appearing on the books of the Company
and delivered in accordance with Section 11(d).
(h) Adjustment if Registration Statement Not Effective. If a Registration
Statement (as defined in the Registration Rights Agreement, dated as of the
Warrant Date, between the Company and the Holder (the "REGISTRATION RIGHTS
AGREEMENT")) is not effective with respect to all the Registrable Securities (as
defined in the Registration Rights Agreement)other than Registrable Securities
-6-
held by holders (i) which have not complied with the Registration Rights
Agreement, including, without limitation, Section 4 thereof, or (ii) have
otherwise not permitted the Company to include such Registrable Securities on
the Registration Statement, on or prior to November 12, 2004,, then the Exercise
Price shall be adjusted to equal $1.50 (subject to adjustment for stock splits,
reverse splits, stock dividends and the like, and subject to adjustment in
proportion to any adjustment pursuant to Section 3(c)).
4. TRANSFER OF WARRANT. This Warrant may only be transferred in compliance with
federal and state securities laws; provided, however, that the Company may
withhold its consent to transfer or assignment of this Warrant to any person or
entity who is deemed to be a competitor or prospective competitor of the
Company, such determination to be made in the reasonable judgment of the Board.
If, at the time of the surrender of this Warrant in connection with any transfer
of this Warrant or the resale of the Warrant Shares, this Warrant or the Warrant
Shares, as applicable, shall not be registered under the Securities Act of 1933,
as amended (the "SECURITIES ACT"), the Company may require, as a condition of
allowing such transfer (i) that the Holder or transferee of this Warrant or the
Warrant Shares as the case may be, furnish to the Company a written opinion of
counsel that is reasonably acceptable to the Company to the effect that such
transfer may be made without registration under the Securities Act, (ii) that
the Holder or transferee execute and deliver to the Company an investment letter
in form and substance acceptable to the Company and substantially in the form
attached as Exhibit B hereto and (iii) that the transferee be an "accredited
investor" as defined in Rule 501(a) promulgated under the Securities Act.
Transfer of this Warrant and all rights hereunder, in whole or in part, in
accordance with the foregoing provisions, shall be registered on the books of
the Company to be maintained for such purpose, upon surrender of this Warrant to
the principal office of the Company or the office or agency designated by the
Company, together with a written assignment of this Warrant substantially in the
form of Exhibit C hereto duly executed by the Holder or its attorney-in-fact and
funds sufficient to pay any transfer taxes payable upon the making of such
transfer. Upon such surrender and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denomination specified in such instrument of assignment,
and shall issue to the assignor a new Warrant evidencing the portion of this
Warrant not so assigned, and this Warrant shall promptly be cancelled. Following
a transfer that complies with the requirements of this Section 4, the Warrant
may be exercised by a new holder for the purchase of shares of Common Stock
regardless of whether the Company issued or registered a new Warrant on the
books of the Company. This Section 4 shall survive the exercise or expiration of
the Warrant.
5. CONDITIONS TO EXERCISE OF WARRANT.
(a) Each certificate evidencing the Warrant Shares issued upon exercise of
this Warrant shall be stamped or imprinted with a legend substantially in the
following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR,
IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE
-7-
SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE THEREWITH.
(b) REMOVAL OF LEGEND AND TRANSFER RESTRICTIONS. Any legend endorsed on a
certificate pursuant to this Section 5 shall be removed, and the Company shall
issue a certificate without such legend to the holder of such Warrant Shares if
(i) such Warrant Shares are resold pursuant to a registration statement under
the Securities Act, and a prospectus meeting the requirements of Section 10 of
the Securities Act is delivered or deemed delivered to the purchaser of such
Warrant Shares, (ii) if such holder satisfies the requirements of Rule 144(k) or
(iii) if such holder provides the Company with an opinion of counsel for such
holder of the Warrant Shares, reasonably satisfactory to the Company, to the
effect that a sale, transfer or assignment of such Warrant Shares may be made
without registration. This paragraph shall survive any exercise of this Warrant.
(c) RESTRICTIONS ON EXERCISE AMOUNT. The Company shall not effect any
exercise of this Warrant, and the Holder shall not have the right to exercise
any portion of this Warrant, to the extent that, after giving effect to such
issuance, the number of shares of Common Stock beneficially owned by such Holder
and its affiliates and any other persons or entities whose beneficial ownership
of Common Stock would be aggregated with the Holder's for purposes of Section
13(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")
and the rules and regulations promulgated thereunder, (including shares held by
any "group" of which the Holder is a member, but excluding shares beneficially
owned by virtue of the ownership of securities or rights to acquire securities
that have limitations on the right to convert, exercise or purchase similar to
the limitation set forth herein) would exceed 4.99% (the "APPLICABLE
PERCENTAGE") of the total number of shares of Common Stock of the Company issued
and outstanding immediately after giving effect to such exercise. For purposes
hereof, "group" has the meaning set forth in Section 13(d) of the Exchange Act
and applicable rules and regulations of the Securities and Exchange Commission
(the "COMMISSION"), and the percentage held by the Holder shall be determined in
a manner consistent with the provisions of Section 13(d) of the Exchange Act.
Each delivery of a notice of exercise by a Holder will constitute a
representation by such Holder that it has evaluated the limitation set forth in
this paragraph and determined, based on the most recent public filings by the
Company with the Commission, that the issuance of the full number of Warrant
Shares requested in such notice of exercise is permitted under this paragraph.
The provisions of this paragraph shall be implemented in a manner otherwise than
in strict conformity with the terms of this Section 5(c) to correct this
paragraph (or any portion hereof) which may be defective or inconsistent with
the intended Applicable Percentage beneficial ownership limitation herein
contained or to make changes or supplements necessary or desirable to properly
give effect to such Applicable Percentage limitation. The holders of Common
Stock of the Company shall be third party beneficiaries of this Section 5(c) and
the Company may not waive this Section 5(c) without the consent of holders of a
majority of its Common Stock.
6. FRACTIONAL SHARES. No fractional Warrant Shares will be issued in connection
with any exercise hereunder, but in lieu of such fractional shares the Company
shall make a cash payment therefor upon the basis of the Exercise Price then in
effect.
-8-
7. REGISTRATION RIGHTS. The Holder shall have the registration rights described
in the Registration Rights Agreement.
8. RIGHTS OF STOCKHOLDERS. No Holder shall be entitled, in its capacity as a
Warrant holder, to vote or receive dividends or be deemed the holder of Warrant
Shares or any other securities of the Company which may at any time be issuable
on the exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold consent
to any corporate action (whether upon any recapitalization, issuance of stock,
reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or to receive dividends or subscription rights or
otherwise with respect to the Warrant Shares until this Warrant shall have been
exercised and the Warrant Shares purchasable upon the exercise hereof shall have
become deliverable, as provided herein.
9. TERM OF WARRANT. This Warrant shall become exercisable on the Warrant Date
and shall no longer be exercisable as of the earlier of (i) 5:00 p.m., San
Diego, California local time, on the date that is the five-year anniversary of
the Warrant Date; and (ii) upon consummation of a Change of Control.
10. REDEMPTION AT COMPANY'S ELECTION. The Company may at the option of the
Board, by at least seven-days' prior written notice to the Holder (the
"REDEMPTION NOTICE"), redeem this Warrant, in whole or in part, at any time
after June 30, 2004, provided that (i) the Daily Market Price for twenty
consecutive trading days is equal to or greater than the product of (x) 2
multiplied by (y) the Exercise Price, (ii) either (A) all of the Warrant Shares
underlying this Warrant to be redeemed are then registered under an effective
registration statement or (B) may be sold pursuant to Rule 144 during a
three-month period without registration under the Securities Act, (iii)
sufficient shares of Common Stock of the Company are authorized and reserved for
issuance upon the full exercise of this Warrant, (iv) all of the Warrant Shares
issuable upon exercise of this Warrant are then listed on every stock exchange,
market or bulletin board on which any Common Stock of the Company is then listed
and (v) the Company is not in default of any material provision of any
Transaction Agreement (as defined in the Purchase Agreement). The Redemption
Notice shall set forth a date, not less than seven days after the date of the
Redemption Notice, on which the redemption of this Warrant shall occur (the
"REDEMPTION DATE"). On the Redemption Date, (i) the Company shall pay the Holder
by certified check an amount equal to the product of (x) $0.01 (as adjusted in
proportion to any adjustment to the Exercise Price pursuant to Section 3 hereof)
multiplied by (y) the number of Warrant Shares so redeemed; and (ii) the Holder
shall deliver the original copy of this Warrant marked "REDEEMED" to the
Company. If the Company shall redeem this Warrant in part, the Company shall, at
the Redemption Date, provided that the Holder shall have delivered the original
copy of this Warrant marked "REDEEMED" to the Company, deliver to the Holder a
new Warrant evidencing the rights of the Holder to purchase the unredeemed
shares of Common Stock called for by this Warrant, which new Warrant shall in
all other respects be identical with this Warrant. Nothing in this Section 10
shall prevent the exercise of the Warrants at any time prior to the Redemption
Date.
-9-
11. MISCELLANEOUS.
(a) This Warrant is being delivered in the State of California and shall
be construed and enforced in accordance with and governed by the laws of the
State of California, without giving effect to principles of conflicts of laws,
except that corporate matters shall be governed by Delaware law.
(b) The headings in this Warrant are for purposes of reference only, and
shall not limit or otherwise affect any of the terms hereof.
(c) The terms of this Warrant shall be binding upon and shall inure to the
benefit of any successors or assigns of the Company and of the Holder and of the
Warrant Shares issued or issuable upon the exercise hereof.
(d) Any notice provided for or permitted under this Warrant shall be
treated as having been given (a) upon receipt, when delivered personally or sent
by confirmed facsimile or telecopy, (b) one day after sending, when sent by
commercial overnight courier with written verification of receipt, or (c) three
business days after deposit with the United States Postal Service, when mailed
postage prepaid by certified or registered mail, return receipt requested,
addressed (a) if to the Company, at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX
00000, facsimile: (000) 000-0000, Attention: Xxxxxxxx X. Xxxxx, or, if to the
Holder, at such address or facsimile number as the Holder shall have furnished
to the Company in writing, or at such other place of which the other party has
been notified in accordance with the provisions of this Section 11(d).
(e) Except as may otherwise be provided herein, this Warrant constitutes
the full and entire understanding and agreement between the parties with regard
to the subjects hereof.
(f) 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 delivery of an indemnity agreement
reasonably satisfactory in form and amount to the Company or, in the case of any
such mutilation, upon surrender and cancellation of such Warrant, the Company at
the Holder's expense will execute and deliver to the holder of record, in lieu
thereof, a new Warrant of like date and tenor.
(g) This Warrant and any provision hereof may be amended, waived or
terminated only by an instrument in writing signed by the Company and the
Holder.
(h) Receipt of this Warrant by the Holder shall constitute acceptance of
and agreement to the foregoing terms and conditions.
[Signature page follows.]
-10-
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
Issued : April 8,2004.
ADVENTRX PHARMACEUTICALS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: President & CEO
-11-
EXHIBIT A
NOTICE OF EXERCISE
TO: Adventrx Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
1. The undersigned hereby elects to purchase ____________ shares of Common
Stock, par value $0.001 per share, of the Company ("COMMON STOCK") pursuant to
the terms of Section 1(b) of the A-1 Warrant to Purchase Common Stock dated
___________ 2004 (the "WARRANT"), and tenders herewith payment of the purchase
price of such shares in full.
2. The undersigned hereby elects to convert the attached Warrant into
Common Stock of Adventrx Pharmaceuticals, Inc. through "cashless exercise" in
the manner specified in the Warrant. This conversion is exercised with respect
to _____________________ of the Shares covered by the Warrant.
Please issue a certificate or certificates representing said _________
shares of Common Stock in the name of the undersigned or in such other name as
is specified below:
Name: _________________________________
Address: _________________________________
---------------------------------
By: ____________________________________________
Name: ____________________________________________
Title: ____________________________________________
Date: ____________________________________________
EXHIBIT B
FORM OF INVESTMENT REPRESENTATION LETTER
In connection with the acquisition of [warrants (the "Warrants") to purchase
_______ shares of Common Stock of Adventrx Pharmaceuticals, Inc. (the
"Company"), par value $0.001 per share (the "Common Stock")][________ shares of
Common Stock of Adventrx Pharmaceuticals, Inc. (the "Company"), par value $0.001
per share (the "Common Stock")], by _______________ (the "Holder") from
_____________, the Holder hereby represents and warrants to the Company as
follows:
The Holder (i) is an "Accredited Investor" as that term is defined in Rule 501
of Regulation D promulgated under the Securities Act of 1933, as amended (the
"Act"); and (ii) has the ability to bear the economic risks of such Holder's
prospective investment, including a complete loss of Holder's investment in the
Warrants and the shares of Common Stock issuable upon the exercise thereof
(collectively, the "Securities").
The Holder, by acceptance of the Warrants, represents and warrants to the
Company that the Warrants and all securities acquired upon any and all exercises
of the Warrants are purchased for the Holder's own account, and not with view to
distribution of either the Warrants or any securities purchasable upon exercise
thereof in violation of applicable securities laws.
The Holder acknowledges that (i) the Securities have not been registered under
the Act, (ii) the Securities are "restricted securities" and the certificate(s)
representing the Securities shall bear the following legend, or a similar legend
to the same effect, until (i) in the case of the shares of Common Stock
underlying the Warrants, such shares shall have been registered for resale by
the Holder under the Act and effectively been disposed of in accordance with a
registration statement that has been declared effective; or (ii) in the opinion
of counsel for the Company such Securities may be sold without registration
under the Act:
"[NEITHER] THE SECURITIES REPRESENTED BY THIS CERTIFICATE [NOR THE SECURITIES
INTO WHICH THEY ARE EXERCISABLE] HAVE [NOT] BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND ALL SUCH SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THIS CERTIFICATE. [NEITHER] THE
SECURITIES REPRESENTED HEREBY [NOR THE SECURITIES INTO WHICH THEY ARE
EXERCISABLE] MAY [NOT] BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF
COUNSEL, REASONABLY ACCEPTABLE TO COUNSEL FOR THE COMPANY, TO THE EFFECT THAT
THE PROPOSED SALE, TRANSFER, OR DISPOSITION MAY BE EFFECTUATED WITHOUT
REGISTRATION UNDER THE ACT."
IN WITNESS WHEREOF, the Holder has caused this Investment Representation Letter
to be executed in its corporate name by its duly authorized officer this __ day
of __________ 200_.
[Name]
By:______________________________
Name:
Title:
EXHIBIT C
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this Warrant for the
purchase of shares of Common Stock of Adventrx Pharmaceuticals, Inc. hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under this Warrant, with respect to the number of shares of
common stock set forth below:
---------------------------------------
---------------------------------------
---------------------------------------
(Name and Address of Assignee)
---------------------------------------
(Number of Shares of Common Stock)
and does hereby irrevocably constitute and appoint ____________ attorney-in-fact
to register such transfer on the books of the Company, maintained for the
purpose, with full power of substitution in the premises.
Dated:_________________________________
--------------------------------------
(Print Name and Title)
--------------------------------------
(Signature)
--------------------------------------
(Witness)
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the Warrant in every particular, without alteration or
enlargement or any change whatsoever.
