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Exhibit 4.9
NEITHER THIS WARRANT NOR THE SHARES OF STOCK ISSUABLE UPON EXERCISE HEREOF HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO SALE,
TRANSFER OR OTHER DISPOSITION OF THIS WARRANT OR SAID SHARES MAY BE EFFECTED
WITHOUT (i) AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (ii) AN
OPINION OF COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION IS NOT REQUIRED OR (iii) RECEIPT OF A NO-ACTION LETTER FROM
THE SECURITIES AND EXCHANGE COMMISSION TO THE EFFECT THAT REGISTRATION UNDER
THE ACT IS NOT REQUIRED.
Shares Issuable Upon Exercise: 60,000
WARRANT TO PURCHASE
SHARES OF SERIES B PREFERRED STOCK
THIS CERTIFIES THAT, for value received, Dominion Ventures, Inc., is
entitled to subscribe for and purchase 60,000 shares (as adjusted pursuant to
provisions hereof, the "Shares") of the fully paid and nonassessable Series B
Preferred Stock or Ribogene, Inc., a California corporation (the "Company"), at
a price per share of $1.00 (such price and such other price as shall result,
from time to time, from adjustments specified herein is herein referred to as
the "Warrant Price"), subject to the provisions and upon the terms and
conditions hereinafter set forth. As used herein, the term "Preferred Stock"
shall mean the Company's presently authorized Series B Preferred Stock, and any
stock into or for which such Series B Preferred Stock may hereafter be converted
or exchanged pursuant to the Articles of Incorporation of the Company as from
time to time amended as provided by law and in such Articles, and the term
"Grant Date" shall mean August 9, 1991.
1. Term. Subject to the terms hereof, the purchase right represented by
this Warrant is exercisable, in whole or in part, at any time and from time to
time from and after the Grant Date and prior to the earlier of the eighth
annual anniversary date of the Grant Date or the fifth annual anniversary of the
consummation of the Company's initial public offering of its Common Stock, the
aggregate gross proceeds from which exceed $5,000,000.
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2. Method of Exercise; Net Issue Exercise.
2.1 Method of Exercise; Payment; Issuance of New Warrant. The
purchase right represented by this Warrant may be exercised by the holder
hereof, in whole or in part and from time to time, by either, at the election of
the holder hereof, (a) the surrender of this Warrant (with the notice of
exercise form attached hereto as Exhibit A duly executed) at the principal
office of the Company and by the payment to the Company, by check, of an amount
equal to the then applicable Warrant Price per share multiplied by the number
of Shares then being purchased or (b) if in connection with a registered public
offering of the Company's securities, the surrender of this Warrant (with the
notice of exercise form attached hereto as Exhibit A-1 duly executed) at the
principal office of the Company together with notice of arrangements reasonably
satisfactory to the Company for payment to the Company either by check or from
the proceeds of the sale of shares to be sold by the holder in such public
offering of an amount equal to the then applicable Warrant Price per share
multiplied by the number of Shares then being purchased. The person or persons
in whose name(s) any certificate(s) representing shares of Preferred Stock 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 shares represented thereby (and such shares shall be deemed
to have been issued) immediately prior to the close of business on the date or
dates upon which this Warrant is exercised. In the event of any exercise of the
rights represented by this Warrant, certificates for the shares of stock so
purchased shall be delivered to the holder hereof as soon as possible and in
any event within thirty days of receipt of such notice and, unless this Warrant
has been fully exercised or expired, a new Warrant representing the portion of
the Shares, if any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the holder hereof as soon as possible and in
any event within such thirty-day period.
2.2 Net Issue Exercise.
(a) In lieu of exercising this Warrant, holder may elect
to receive shares equal to the value of this Warrant (or the portion thereof
being canceled) by surrender of this Warrant at the principal office of the
Company together with notice of such election in which event the Company shall
issue to Holder a number of shares of the Company's Preferred Stock computed
using the following formula:
Y(A-B)
X = --------
A
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Where X - The number of shares of Preferred Stock to be issued to Holder.
Y - the number of shares of Preferred Stock purchasable under this
Warrant.
A - the fair market value of one share of the Company's Preferred
Stock.
B - Warrant price (as adjusted to the date of such calculations).
(b) For purposes of this Section, fair market value of the
Company's Preferred Stock shall mean the average of the closing bid and asked
prices of the Company's Preferred Stock quoted in the Over-The-Counter Market
Summary or the closing price quoted on any exchange on which the Preferred
Stock is listed, whichever is applicable, as published in the Western Edition of
The Wall Street Journal for the ten trading days prior to the date of
determination of fair market value.
2.3 Company's Option Upon Registered Offering. In the event of the
initial registered public offering by the Company of its Common Stock effected
pursuant to a Registered Statement on Form S-1 (or its successor) filed under
the Securities Act of 1933, the Company will have the option to purchase for
cash immediately prior to the issuance of such shares in such offering all, but
not less than all, of the following: (i) this Warrant for a price per Share
equal to the difference between (x) the Net Per Share Price (as defined below)
of the stock being issued in such offering and (y) the Warrant Price, and (ii)
all Shares that have been issued pursuant to the exercise of this Warrant for a
price per share equal to the Net Per Share Price of the stock being issued in
such offering. For the purpose of this Paragraph the term "Net Per Share
Price" shall mean the proceeds to be received by the Company (or selling
shareholders, in the event of a secondary offering) for each share in the
registered public offering, net of underwriting commissions.
2.4 Company's Option Upon Merger. In the event of (i) any
consolidation or merger of the Company with or into any other corporation, or
(ii) any sale of all or substantially all of the assets of the Company, in
either case in which the Company shall not be the continuing surviving entity
and immediately after which the holders of the voting shares of the Company
immediately prior to such event hold less than a majority of the total voting
power of the continuing and surviving entity, then the Company shall have the
option to purchase this Warrant on the closing date of such event for cash or
freely-
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equal to the greater of (x) three (3) times the Warrant Price or (y) the excess
(if any) of the Market Value (as defined herein) of the Shares over the Warrant
Price. The Market Value of each Share shall be determined by dividing the
total consideration to be received by the Company or its shareholders in
connection with such event by the number of shares of Common Stock then
outstanding assuming that all convertible securities of the Company have been
converted into Common Stock). Any securities to be delivered to the Company or
its security holders shall be valued as follows:
(A) If traded on a securities exchange, the value shall be deemed
to be the average of the closing prices of the securities on such exchange over
the 30-day period ending five (5) business days prior to the closing; and
(B) If traded over-the-counter, the value shall be deemed to be the
average closing prices of the securities over the 30-day period ending five
(5) business days prior to the closing; and
(C) If there is no public market, the value shall be the fair
market value thereof, as determined by mutual agreement of the holder of this
Warrant and the Company, and if the parties are unable to so agree, by an
investment banker of national reputation selected by the Company and reasonably
acceptable to the holder of this Warrant.
3. Stock Fully Paid; Reservation of Shares. All Shares that may
be issued upon the exercise of the rights represented by this Warrant and
Common Stock issuable upon conversion of the Preferred Stock will, upon
issuance, be fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issue thereof. During the period within which the
rights represented by the Warrant may be exercised, the Company will at all
times have authorized and reserved for the purpose of issuance upon exercise of
the purchase rights evidenced by this Warrant, a sufficient number of shares of
its Preferred Stock (and Common Stock issuable upon conversion thereof) to
provide for the exercise of the right represented by this Warrant.
4. Adjustment of Warrant Price and Number of Shares. The number
and kind of securities purchasable upon the exercise of the Warrant and the
Warrant Price shall be subject to adjustment from time to time upon the
occurrence 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:
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(i) (A) Upon each issuance by the Company of any
Additional Stock (as defined below), after the Grant Date, 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 4(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 put the number of shares of Common Stock which could be purchased
were the then Warrant Price used instead (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 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. Except to the limited extent provided for in subsections
4(a)(i) E(3) and E(4), no adjustment of the Warrant Price pursuant to this
subsection 4(a)(i) shall have the effect of increasing the Warrant Price above
the Warrant Price in effect immediately prior to such adjustment.
(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.
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(E) In the case of the issuance (whether before,
on or after the Grant Date) 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 4(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 4(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 4(a)(i)(C) and
4(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 upon exercise of such options or rights or upon conversion of or in
exchange for 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
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option or rights or the conversion or exchange os such securities.
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 4(a)(i)(E)
(1) and (2) shall be appropriately adjusted to reflect any change, termination
or expiration of the type described in either subsection 4(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 4(a)(i)(E) by
this Company after the Grant Date other than (A) shares of Common Stock issued
upon conversion of the Company's Series A and B Preferred Stock which have been
issued prior to the Grant Date, (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 and (C) shares of Common Stock
issued upon the exercise of warrants or options issued by the Company prior to,
or as of the Grant Date or issued by the Company subsequent to the Grant Date
pursuant to an obligation to do so arising under a written agreement entered
into by the Company prior to, or as of the Grant Date.
(iii) Notwithstanding any provisions to this Section 4(a) to
the contrary, no adjustment to the Warrant Price shall be made to this Section
4(a) upon issuance by the Company of Additional Stock if a similar or
corresponding adjustment is made to the Conversion Price of the Preferred Stock
pursuant to the Company's Articles of Incorporation, as amended.
(iv) Upon each adjustment of the Warrant Price pursuant to
this Section 4(a), the number of Shares issuable upon exercise hereof shall be
adjusted such that the aggregate purchase price for all of such
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Shares, as adjusted, equals $60,000.00.
(b) Reclassification or Merger. In case of any reclassification,
change or conversion of securities of the class issuable upon exercise of this
Warrant (other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), or in case of any merger of the Company with or into another
corporation (other than a merger with another corporation in which the
Company is a continuing corporation and which does not result in any
reclassification or change of outstanding securities issuable upon exercise of
this Warrant), or in case of any sale of all or substantially all of the assets
of the Company, the Company, or such successor or purchasing corporation, as
the case may be, shall execute a new Warrant (in form and substance
satisfactory to the holder of this Warrant) providing that the holder of this
Warrant shall have the right to exercise such new Warrant and upon such
exercise to receive, in lieu of each share of Preferred Stock theretofore
issuable upon exercise of this Warrant, the kind and amount of shares of stock,
other securities, money and property receivable upon such reclassification,
change or merger by a holder of one share of Preferred Stock. Such new Warrant
shall provide for adjustments that shall be as nearly equivalent as may be
practicable to the adjustments provided for in this paragraph 4. The provisions
of this subparagraph (a) shall similarly apply to successive reclassification,
changes, mergers and transfers.
(c) Subdivisions or Combination of Shares. If the Company at any
time while this Warrant remains outstanding and unexpired shall subdivide or
combine its Preferred Stock, the Warrant Price and the number of Shares
issuable upon exercise hereof shall be proportionately adjusted.
(d) Stock Dividends. If the Company at any time while this Warrant
is outstanding and unexpired shall pay a dividend payable in shares of Preferred
Stock (except any distribution specifically provided for in the foregoing
subparagraphs (a) and (b)), then the Warrant Price shall be adjusted, from and
after the date of determination of shareholders entitled to receive such
dividend or distribution, to that price determined by multiplying the Warrant
Price in effect immediately prior to such date of determination by a fraction
(a) the numerator of which shall be the total number of shares of Preferred
Stock outstanding immediately prior to such dividend or distribution, and (b)
the denominator of which shall be the total number of shares of Preferred Stock
outstanding immediately after such dividend or distribution and the number of
Shares subject to this
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Warrant shall be proportionately adjusted.
(e) No Impairment. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of all
the provisions of this Paragraph 4 and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the holder of
this Warrant against impairment.
(f) Notices of Record Date. In the event of any taking by the
Company of a record of its shareholders for the purpose of determining
shareholders who are entitled to receive payment of any dividend (other than a
cash dividend) or other distribution, any right to subscribe for, purchase or
otherwise acquire any share of any class or any other securities or property,
or to receive any other right, or for the purpose of determining shareholders
who are entitled to vote in connection with any proposed merger or
consolidation of the Company with or into any other corporation, or any
proposed sale, lease or conveyance of all or substantially all of the assets of
the Company, or any proposed liquidation, dissolution or winding up of the
Company, the Company shall mail to the holder of the Warrant, at least twenty
(20) days prior to the date specified therein, a notice specifying the date on
which any such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such dividend,
distribution or right.
5. Notice of Adjustments. Whenever the Warrant Price shall be
adjusted pursuant to the provisions hereof, the Company shall within thirty
(30) days of such adjustment deliver a certificate signed by its chief
financial officer to the registered holder(s) hereof setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Warrant
Price after giving effect to such adjustment.
6. Fractional Shares. No fractional shares of Preferred Stock
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 Warrant Price then in effect.
7. Compliance with Securities Act; Disposition of Warrant or Shares
of Preferred Stock.
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(a) Compliance with Securities Act. The holder of this
Warrant and each subsequent holder, by acceptance hereof, agrees that this
Warrant, the shares of Preferred Stock to be issued upon exercise hereof and
the Common Stock to be issued upon conversion of such Preferred Stock are being
acquired for investment and that such holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Preferred Stock to be issued upon
exercise hereof (or Common Stock issued upon conversion of the Preferred Stock)
except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended (the "Act"). This Warrant and all shares of
Preferred Stock issued upon exercise of this Warrant (unless registered under
the Act) shall be stamped or imprinted with a legend in substantially the
following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT (i) AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO, (ii) AN OPINION OF
COUNSEL FOR THE HOLDER, REASONABLY SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION IS NOT REQUIRED OR (iii) RECEIPT OF A NO-ACTION LETTER
FROM THE SECURITIES AND EXCHANGE COMMISSION TO THE EFFECT THAT
REGISTRATION UNDER THE ACT IS NOT REQUIRED.
(b) Disposition of Warrant and Shares. With respect to any
offer, sale or other disposition of this Warrant or any shares of Preferred
Stock acquired pursuant to the exercise of this Warrant (or Common Stock issued
upon conversion of such Preferred Stock) prior to registration of such shares,
the holder hereof and each subsequent holder of the Warrant agrees to give
written notice to the Company prior thereto, describing briefly the manner
thereof, together with a written opinion of such holder's counsel, if
reasonably requested by the Company, to the effect that such offer, sale or
other disposition may be effected without registration or qualification (under
the Act as then in effect or any federal or state law then in effect) of this
Warrant or such shares of Preferred Stock or Common Stock and indicating
whether or not under the Act certificates for this Warrant or such shares of
Preferred Stock or Common Stock to be sold or otherwise disposed of require any
restrictive legend as to applicable restrictions on transferability in order to
insure compliance with the Act. Each certificate representing this Warrant or
the shares of Preferred Stock or Common Stock thus transferred (except a
transfer pursuant to Rule 144) shall bear a legend as to the applicable
restrictions on transferability in order to insure compliance with the Act,
unless in the aforesaid opinion of counsel for the holder, such legend is not
required in order to insure compliance with the Act. Nothing herein shall
restrict the transfer of this Warrant or any portion hereof by the initial
holder hereof to any partnership affiliated with the initial holder, or to any
partner of any such partnership provided such transfer may be made in compliance
with applicable
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federal and state securities laws. The Company may issue stop transfer
instructions to its transfer agent in connection with the foregoing
restrictions.
8. Rights as Shareholders; Information.
8.1 Shareholder Rights. No holder of the Warrant, as
such, shall be entitled to vote or receive dividends or be deemed the holder
of Preferred Stock or any other securities of the Company which may at any time
be issuable on the exercise thereof for any purpose, nor shall anything
contained herein be construed to confer upon the holder of this Warrant, as
such, any of the rights of a shareholder of the Company or any right to vote
for the election of directors or upon any matter submitted to shareholders at
any meeting thereof, or to receive notice of meetings, or to receive dividends
or subscription rights or otherwise until this Warrant shall have been
exercised and the Shares purchasable upon the exercise hereof shall become
deliverable, as provided herein.
8.2 Financial Statements and Information. The
Company shall deliver to the registered holder hereof (i) within 120 days after
the end of the fiscal year of the Company, a consolidated balance sheet of the
Company as of the end of such year and a consolidated statement of income,
retained earnings and cash flows for such year, which year-end financial reports
shall be in reasonable detail and certified by independent public accountants
of nationally recognized standing selected by the Company, and (ii) within 45
days after the end of each fiscal quarter other than the last fiscal quarter,
unaudited consolidated statements of income, retained earnings and cash flows
for such quarter and a consolidated balance sheet as of the end of such
quarter. In addition, the Company shall deliver to the registered holder
hereof any other information or data provided to the shareholders of the
Company.
9. Grant of Rights. The company hereby grants to the holder hereof the
registration rights set forth in the "First Amendment to the First Amended and
Restated Registration Rights Agreement" attached hereto as Exhibit B, which
provides that the holder of this Warrant shall be deemed a "Holder" as defined
in the First Amendment to the First Amended and Restated Registration Rights
Agreement, and that the Common Stock of the Company issued upon conversion of
the Shares shall be deemed to be "Registrable Securities" as defined in the
First Amendment to the First Amended and Restated Registration Rights Agreement.
10. Additional Rights.
10.1 Secondary Sales. The Company agrees to notify the holder of
this Warrant if opportunities to make secondary sales of the Company's
securities become available. To this end, the Company will promptly will
promptly provide the holder of this
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Warrant with notice of any offer to acquire from the Company's security holders
more than five percent (5%) of the total voting power of the Company.
10.2 Mergers. Unless the Company provides the holder of this
Warrant with advance notice of the terms and conditions of the proposed
transaction, the Company will not (i) sell, lease, exchange, convey or
otherwise dispose of all or substantially all of its property or business, or
(ii) merge into or consolidate with any other corporation (other than a
wholly-owned subsidiary of the Company), or effect any transaction (including a
merger or other reorganization) or series of related transactions, in which
more than 50% of the voting power of the Company is disposed of.
11. Representations and Warranties. This Warrant is issued and
delivered on the basis of the following:
(a) This Warrant has been duly authorized and executed by the
Company and when delivered will be the valid and binding obligation of the
Company enforceable in accordance with its terms;
(b) The Shares have been duly authorized and reserved for
issuance by the Company and, when issued in accordance with the terms hereof,
will be validly issued, fully paid and nonassessable;
(c) The rights, preferences, privileges and restrictions
granted to or imposed upon the shares of Preferred Stock and the holders
thereof are as set forth in the Company's Articles of Incorporation, as
amended, a true and complete copy of which has been delivered to the original
Warrantholder;
(d) The shares of Common Stock issuable up conversion of the
Shares have been duly authorized and reserved and, when issued in accordance
with the terms of the Company's Articles of Incorporation, as amended, will be
validly issued, fully paid and nonassessable; and
(e) The execution and delivery of this Warrant are not, and
the issuance of the Shares upon exercise of this Warrant in accordance with the
terms hereof will not be, inconsistent with the Company's Articles of
Incorporation or by-laws, do not and will not contravene any law, governmental
rule or regulation, judgment or order applicable to the Company, and do not and
will not contravene any provision of, or constitute a default under, any
indenture, mortgage, contract or other instrument of which the Company is a
party or by which it is bound or require the consent or approval of, the giving
of notice to, the registration with or the taking of any action in respect of
or by, any Federal, state or local government authority or agency or other
person.
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12. Modification and Waiver. This Warrant and any provision hereof
may be changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of the same is sought.
13. Notices. Any notice, request or other document required or
permitted to be given or delivered to the holder hereof or the Company shall be
delivered, or shall be sent by certified or registered mail, postage prepaid,
to each such holder at its address as shown on the books of the Company or to
the Company at the address indicated therefore on the signature page of this
Warrant.
14. Binding Effect on Successors. This Warrant shall be binding upon
any corporation succeeding the Company by merger, consolidation or acquisition
of all or substantially all of the Company's assets, and all of the obligations
of the Company relating to the Preferred Stock issuable upon the exercise of
this Warrant shall survive the exercise and termination of this Warrant and all
of the covenants and agreements of the Company shall inure to the benefit of
the successors and assigns of the holder hereof. The Company will, at the time
of the exercise of this Warrant, in whole or in part, upon request of the
holder hereof but at the Company's expense, acknowledge in writing its
continuing obligation to the holder hereof in respect of any rights (including,
without limitation, any right to registration of the shares of Registrable
Securities) to which the holder hereof shall continue to be entitled after such
exercise in accordance with this Warrant; provided, that the failure of the
holder hereof to make any such request shall not affect the continuing
obligation of the Company to the holder hereof in respect of such rights.
15. Lost Warrants or Stock Certificates. The Company covenants to the
holder hereof that upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction, or mutilation of this Warrant or any
stock certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonably satisfactory to the Company, or in the case
of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the Company will make and deliver a new Warrant or stock
certificate, or like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant or stock certificate.
16. Descriptive Headings. The descriptive headings of the several
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
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17. Governing Law. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS
OF THE STATE OF CALIFORNIA.
By: RIBOGENE, INC.
[SIG]
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Title: CEO & President
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Address: 0000 Xxxxx Xxx.
Xxxxx X
Xxxxx Xxxx, XX
Date:
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14
15
EXHIBIT A
Notice of Exercise
To:
1. The undersigned hereby elects to purchase _________ shares of
Series __ Preferred Stock of ______________________________Corporation 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:
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(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.
-------------------------------------
(Signature)
-----------------------
(Date)
15
16
EXHIBIT A-1
Notice of Exercise
To:
1. Contingent upon and effective immediately prior to the closing (the
"Closing") of the Company's public offering contemplated by the Registration
Statement of Form S-____, filed __________________, 19____, the undersigned
hereby elects to purchase _____________ shares of Series ___ Preferred Stock of
the Company (or such lesser number of shares as may be sold on behalf of the
undersigned at the Closing) pursuant to the terms of the attached Warrant.
2. Please deliver to the custodian for the selling shareholders a
stock certificate representing such ________ shares.
3. The undersigned has instructed the custodian for the selling
shareholders to deliver to the Company $____________ or, if less, the net
proceeds due the undersigned from the sale of shares in the aforesaid public
offering. If such net proceeds are less than the purchase price for such
shares, the undersigned agrees to deliver the difference to the Company prior
to the Closing.
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(Signature)
------------------
Date
16
