Exhibit 10.4
[NOTE: THIS WARRANT IS NOT TO BE ISSUED UNTIL THE WARRANT ISSUANCE CONDITION HAS
BEEN SATISFIED]
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.
No.: 1999-AA1
Date: [______ __], 1999
WARRANT TO PURCHASE SHARES OF
THE COMMON STOCK OF
TREGA BIOSCIENCES, INC.
This is to certify that, for value received, XXXXXXXXXXXXX.XXX, INC, a
Delaware corporation (the "HOLDER"), is entitled to purchase, subject to the
provisions of this Warrant, from TREGA BIOSCIENCES, INC., a Delaware corporation
(the "COMPANY"), up to 294,167 shares of the common stock, $0.001 par value, of
the Company ("COMMON STOCK"), at an exercise price of $5.00 per share. The
number of shares of Common Stock to be received upon the exercise of this
Warrant and the price to be paid therefor may be adjusted from time to time as
hereinafter set forth. The shares of Common Stock deliverable upon such
exercise, and as adjusted from time to time, are hereinafter sometimes referred
to as "WARRANT SHARES," and the exercise price of a share of Common Stock in
effect at any time and as adjusted from time to time is hereinafter sometimes
referred to as the "EXERCISE PRICE."
1. EXERCISE OF WARRANT. Subject to the provisions and conditions set
forth herein, this Warrant may be exercised in whole or in part at any time
during the period beginning on the date hereof and ending not later than 5:00
p.m. Pacific Time on August , 2009 (the "EXPIRATION DATE").
(a) METHODS. The Holder may exercise this Warrant, in whole or in
part, by either of the following methods:
(x) Delivery to the Company at its principal office of (i) a written
notice of the Holder's election to exercise this Warrant (in the
form attached hereto as EXHIBIT A), which notice shall specify
the number of Warrant Shares to be purchased, (ii) this Warrant
and (iii) a sum equal to the aggregate Exercise Price therefor
payable by wire transfer of immediately available funds to a
bank account specified by the Company or by such other method as
the Company and the Holder may otherwise agree; or
(y) In a "CASHLESS" or "NET-ISSUE" exercise by delivery to the
Company at its principal office of this Warrant and a written
notice of the Holder's election to exercise this Warrant (in
the form attached hereto as EXHIBIT A and marked to reflect
the net-issue exercise), which notice shall specify the number
of shares of Common Stock to be delivered to the Holder and the
number of shares of Common Stock with respect to which this
Warrant is being surrendered in payment of the aggregate
Exercise Price for the shares of Common Stock to
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be delivered to the Holder. Upon such exercise, the Holder
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 the
Holder a number of shares of the Common Stock computed as of the
date of surrender of this Warrant to the Company using the
following formula:
X = Y (A-B)
-------
A
Where: X = the number of shares of Common Stock to be issued to the
Holder under this Section 1(a);
Y = the number of shares of Common Stock purchasable under
this Warrant, or any lesser number of shares as to which
this Warrant is being exercised (at the date of such
calculation);
A = the fair market value of one Warrant Share (at the date of
such calculation);
B = the Exercise Price (as adjusted to the date of such
calculation).
(b) FAIR MARKET VALUE. For purposes of this Warrant, "FAIR
MARKET VALUE" of one share of Common Stock shall mean:
(1) the average closing price per share of the Common Stock over
the most recent ten (10) trading days on the principal
national securities exchange on which the Common Stock is
listed or admitted to trading, or
(2) if not listed or traded on any such exchange, the average
last reported sales price per share on the Nasdaq National
Market or the Nasdaq Small-Cap Market over the most recent
ten (10) trading days, or
(3) if not listed or traded on any such exchange or Nasdaq, the
average, over the most recent ten (10) trading days, of each
such day's last bid and asked price per share as reported in
the "PINK SHEETS" published by the National Quotation
Bureau, Inc., or
(4) if such quotations are not available, the fair market value
per share of the Common Stock on the date such notice was
received by the Company as reasonably determined by the
Board of Directors of the Company.
(c) NOTICE. Any notice of exercise given pursuant to this
Section 1 may be in the form attached hereto as EXHIBIT A. Upon delivery
thereof, the Company shall cause to be executed and delivered to the Holder
within five (5) business days a certificate or certificates representing the
aggregate number of fully-paid and nonassessable shares of Common Stock
issuable upon such exercise.
(d) CERTIFICATES. The stock certificate or certificates for
shares of Common Stock so delivered shall be in such denominations as may be
specified in the notice and shall be registered in the name of the Holder.
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Such certificate or certificates shall be deemed to have been issued and the
Holder shall be deemed to have become a holder of record of such shares,
including to the extent permitted by law the right to vote such shares or to
consent or to receive notice as a stockholder, as of the time the notice is
delivered to the Company. If this Warrant shall have been exercised only in
part, the Company shall, at the time of delivery of the certificate or
certificates for shares of Common Stock, deliver to the Holder a new Warrant
dated the date it is issued, evidencing the rights of the Holder to purchase
the remaining shares of Common Stock, which new Warrant shall in all other
respects be identical to this Warrant, or, at the request of the Holder,
appropriate notation may be made on this Warrant and the Warrant shall be
returned to the Holder.
(e) EXPENSES. The Company shall pay all expenses, transfer
taxes and other charges payable in connection with the preparation, issue and
delivery of stock certificates under this Section 1.
(f) VALID ISSUANCE. All shares of Common Stock issuable upon
the exercise of this Warrant shall be validly issued, fully paid and
nonassessable and free from all liens and other encumbrances thereon, other
than liens or other encumbrances created by the Holder.
2. RESERVATION OF SHARES. The Company hereby agrees that at all
times there shall be reserved for issuance and/or delivery upon exercise of
this Warrant such number of shares of the Common Stock as shall be required
for issuance and delivery upon exercise of this Warrant.
3. FRACTIONAL SHARES. The Company shall not be required to issue
fractions of shares on the exercise of this Warrant. If any fraction of a
share would, except for the provisions of this Section, be issuable on the
exercise of this Warrant, the Company will (1) if the fraction of a share
otherwise issuable is equal to or less than one-half, round down and issue to
the Holder only the largest whole number of shares of Common Stock to which
the Holder is otherwise entitled, or (2) if the fraction of a share otherwise
issuable is greater than one-half, round-up and issue to the Holder one
additional share of Common Stock in addition to the largest whole number of
shares of Common Stock to which the Holder is otherwise entitled.
4. EXCHANGE, LOSS OR DESTRUCTION OF WARRANT. Upon receipt by the
Company of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction)
of such indemnification as the Company may in its discretion impose, and upon
surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver to the Holder a new Warrant of like tenor and date.
5. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or
equity, and the rights of the Holder are limited to those expressed in the
Warrant and are not enforceable against the Company except to the extent set
forth herein.
6. ANTIDILUTION PROVISIONS. The Exercise Price and the number and
kind of securities purchasable upon the exercise of this Warrant shall be
subject to adjustment from time to time as hereinafter provided:
(a) STOCK DIVIDEND. In case the Company shall issue Common
Stock as a dividend upon Common Stock or in payment of a dividend thereon,
shall subdivide the number of outstanding shares of Common Stock into a
greater number of shares or shall contract the number of outstanding shares
of Common Stock into a lesser number of shares, the Exercise Price then in
effect shall be adjusted, effective at the close of business on the record
date for the determination of stockholders entitled to receive such dividend
or be subject to such subdivision or contraction, to the price (computed to
the nearest cent) determined by dividing (x) the product obtained by
multiplying the Exercise Price in effect immediately prior to the close of
business on such record date by the number of shares of Common Stock
outstanding prior to such dividend, subdivision or contraction, by (y) the
sum
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of the number of shares of Common Stock outstanding immediately after such
dividend, subdivision, or contraction.
(b) REORGANIZATION. If any capital reorganization or
reclassification of the capital stock of the Company (other than as set forth
in subsection (a) of this Section 6), or consolidation or merger of the
Company with another corporation, or the sale of all or substantially all of
its assets to another corporation shall be effected, then, as a condition of
such reorganization, reclassification, consolidation, merger or sale, lawful
and adequate provision shall be made whereby the Holder shall thereafter have
the right to purchase and receive upon the basis and upon the terms and
conditions specified in this Warrant and in lieu of the shares of Common
Stock immediately theretofore purchasable and receivable upon the exercise of
the rights represented by this Warrant, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for a
number of outstanding shares of such Common Stock equal to the number of
shares of such Common Stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented by this Warrant had
such reorganization, reclassification, consolidation, merger or sale not
taken place, and in any such case appropriate provision shall be made with
respect to the rights and interest of the Holder to the end that the
provisions of this Warrant (including, without limitation, provisions for
adjustment of the Exercise Price and of the number of shares issuable upon
the exercise of this Warrant) shall thereafter be applicable as nearly as may
be practicable in relation to any shares of stock, securities or assets
thereafter deliverable upon exercise of this Warrant. The Company shall not
effect any such consolidation, merger or sale unless prior to or
simultaneously with the consummation thereof, the successor corporation (if
other than the Company) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume, by written instrument, the
obligation to deliver to the Holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, the Holder may be
entitled to purchase.
(c) NUMBER OF SHARES. Upon each adjustment of the Exercise
Price pursuant to subsection (a) of this Section 6, the number of shares of
Common Stock specified in this Warrant shall thereupon evidence the right to
purchase that number of shares of Common Stock (calculated to the nearest
hundredth of a share of Common Stock) obtained by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of shares
of Common Stock purchasable immediately prior to such adjustment upon
exercise of this Warrant and dividing the product so obtained by the Exercise
Price in effect after such adjustment.
(d) CONTINUING EFFECTIVENESS. Irrespective of any adjustments
of the number or kind of securities issuable upon exercise of this Warrant or
the Exercise Price, Warrants theretofore or thereafter issued may continue to
express the same number of shares of Common Stock and Exercise Price as are
stated in similar Warrants previously issued.
(e) ACCOUNTING FIRM. The Company may, at its sole option,
retain the independent public accounting firm regularly retained by the
Company, or another firm of independent public accountants of recognized
standing selected by the Company's Board of Directors, to make any
computation required under this Section 6 and a certificate signed by such
firm shall be conclusive evidence of any computation made under this Section
6.
(f) ADJUSTMENT CERTIFICATE. Whenever there is an adjustment
in the Exercise Price or in the number or kind of securities issuable upon
exercise of this Warrant, or both, as provided in this Section 6, the Company
shall (i) promptly file in the custody of its Secretary or Assistant
Secretary a certificate signed by the Chairman of the Board or the President
or a Vice President of the Company and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Company, setting
forth the facts requiring such adjustment and the number and kind of
securities issuable upon exercise of this Warrant after such adjustment; and
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(ii) cause a notice stating that such adjustment has been effected and
stating the Exercise Price then in effect and the number and kind of
securities issuable upon exercise of this Warrant to be sent to the Holder.
(g) ADJUSTMENT EVENTS. The Exercise Price and the number of
shares issuable upon exercise of this Warrant shall not be adjusted except in
the manner and only upon the occurrence of the events heretofore specifically
referred to in this Section 6.
(h) BOARD ACTIONS. The Board of Directors of the Company may,
in its sole discretion, (i) reduce the Exercise Price, (ii) increase the
number of shares of Common Stock issuable upon exercise of this Warrant
and/or (iii) provide for the issuance of other securities (in addition to the
shares of Common Stock otherwise issuable upon exercise of this Warrant) upon
exercise of this Warrant.
7. NO TRANSFERS. This Warrant is not assignable. The Warrant Shares or
any other security issued or issuable upon exercise of this Warrant may not be
sold or otherwise disposed of unless the Holder provides the Company with an
opinion of counsel in form and substance satisfactory to the Company that the
Warrant Shares or such other security may be legally transferred without
violating the Securities Act of 1933, as amended (the "1933 ACT"), and any other
applicable securities law and then only against receipt of an agreement of the
transferee to comply with the provisions of this Section 7 with respect to any
resale or other disposition of such securities.
(a) ACKNOWLEDGEMENTS. The Holder, by acceptance hereof,
acknowledges that this Warrant and the Warrant Shares issuable upon exercise
hereof are being acquired solely for the Holder's own account and not as a
nominee for any other party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of any Warrant Shares to be issued upon
exercise hereof except under circumstances that will not result in a
violation of the 1933 Act or any state securities laws. Upon exercise of this
Warrant, the Holder 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 Holder's own account and not as a nominee
for any other party, for investment, and not with a view toward distribution
or resale.
(b) RESTRICTIVE LEGENDS. This Warrant shall (and any Warrant
issued in substitution for this Warrant shall) be stamped or otherwise
imprinted with a legend in substantially the following form:
"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."
Each stock certificate for Warrant Shares issued upon the exercise of this
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 Holder may require the Company to issue a
stock certificate for Warrant Shares
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without a legend if (i) such Warrant Shares, as the case may be, have been
registered for resale under the 1933 Act or sold pursuant to Rule 144 under
the 1933 Act (or a successor rule thereto) or (ii) the Holder has received an
opinion of counsel reasonably satisfactory to the Company that such
registration is not required with respect to such Warrant Shares.
8. 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.
TREGA BIOSCIENCES, INC.
By: ______________________________________
Name: Xxxxxxx X. Xxxx
Title: President & Chief Executive Officer
Dated: [______ __], 1999
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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.
EXERCISE FORM
(To be executed upon exercise of Warrant No. 1999-AA1)
The undersigned hereby irrevocably elects to exercise the right,
represented by the Warrant, to purchase Warrant Shares and (check one):
/ / herewith tenders payment for of the Warrant Shares to
the order of Trega Biosciences, 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" provisions of Section 1 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 the Warrant, the undersigned hereby confirms and
acknowledges that the Warrant Shares are being acquired for investment solely
for the account of the undersigned and not as a nominee for any other party, 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
Warrant, a new Warrant is to be issued in the name of the Holder for the balance
remaining of the shares purchasable thereunder.
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