EXHIBIT 4.7
THIS WARRANT AND THE SHARES OF CAPITAL STOCK ISSUED UPON ANY EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD
OR OTHERWISE TRANSFERRED BY ANY PERSON, INCLUDING A PLEDGEE, UNLESS (1) EITHER
(A) A REGISTRATION WITH RESPECT THERETO SHALL BE EFFECTIVE UNDER THE SECURITIES
ACT, OR (B) THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT IS
AVAILABLE, AND (2) THERE SHALL HAVE BEEN COMPLIANCE WITH ALL APPLICABLE STATE
SECURITIES OR "BLUE SKY" LAWS.
No. RW-RS01 For the Purchase
of 8,346 shares
of Common Stock
PREDIX PHARMACEUTICALS HOLDINGS, INC.
(A DELAWARE CORPORATION)
WARRANT TO PURCHASE SHARES OF COMMON STOCK
VOID AFTER 5:00 P.M., EASTERN STANDARD TIME,
ON JANUARY 17, 2006
PREDIX PHARMACEUTICALS HOLDINGS, INC., a Delaware corporation (the
"COMPANY"), for value received, hereby certifies that Xxxxxx Xxxxxxx (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
the Company, at any time or from time to time at or before the earlier of 5:00
p.m. Eastern Standard Time on January 17, 2006 (the "EXPIRATION DATE") and the
termination of this Warrant as provided in Section 7 hereof, 8,346 shares of the
Common Stock, par value $.01 per share, of the Company (the "COMMON STOCK") (the
Common Stock issuable upon exercise of this Warrant shall hereinafter be
referred to as "WARRANT STOCK"), at a purchase price per share equal to $20.22
per share (the "PURCHASE PRICE"), as adjusted upon the occurrence of certain
events as set forth in Section 3 of this Warrant.
1. Exercise.
1.1 Manner of Exercise; Payment in Cash. Subject to Section 8
hereof, this Warrant may be exercised by the Holder, in whole or in part,
by surrendering this Warrant, with the purchase form appended hereto as
Exhibit A duly executed by the Holder, at the principal office of the
Company, or at such other place as the Company may designate, accompanied
by payment in full of the Purchase Price payable in respect of the number
of
shares of Warrant Stock purchased upon such exercise. Payment of the
Purchase Price shall be in cash or by certified or official bank check
payable to the order of the Company.
1.2 Effectiveness. Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the day
on which this Warrant shall have been surrendered to the Company as
provided in Section 1.1 above. At such time, the person or persons in
whose name or names any certificates for Warrant Stock shall be issuable
upon such exercise as provided in Section 1.3 below shall be deemed to
have become the holder or holders of record of the Warrant Stock
represented by such certificates.
1.3. Delivery of Certificates. As soon as practicable after the
exercise of this Warrant in full or in part, and in any event within ten
(10) business days thereafter, the Company at its sole expense will cause
to be issued in the name of, and delivered to, the Holder, or, subject to
the terms and conditions hereof, as such Holder (upon payment by such
Holder of any applicable transfer taxes) may direct:
(a) A certificate or certificates for the number of full
shares of Warrant Stock to which such Holder shall be entitled upon
such exercise plus, in lieu of any fractional share to which such
Holder would otherwise be entitled, cash in an amount determined
pursuant to Section 2 hereof, and
(b) In case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the
aggregate on the face or faces thereof for the number of shares of
Warrant Stock (without giving effect to any adjustment therein)
equal to the number of such shares called for on the face of this
Warrant minus the number of such shares purchased by the Holder upon
such exercise as provided in Section 1.1 above.
2. Fractional Shares. The Company shall not be required upon the
exercise of this Warrant to issue any fractional shares, but shall make an
adjustment therefor in cash on the basis of the fair market value of the Warrant
Stock on the date of the exercise of this Warrant as reasonably determined by
the Board of Directors of the Company.
3. Certain Adjustments.
3.1. [Intentionally Omitted.]
3.2 Stock Splits, Stock Dividends and Combinations. If the Company
at any time subdivides the outstanding shares of Common Stock, or issues a
stock dividend on the outstanding shares of Common Stock, the Purchase
Price in effect immediately prior to such subdivision or the issuance of
such stock dividend shall be proportionately decreased, and the number of
shares of Warrant Stock subject to this Warrant shall be proportionately
increased, and if the Company at any time combines the outstanding
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shares of Common Stock, the Purchase Price in effect immediately prior to
such combination shall be proportionately increased, and the number of
shares of Warrant Stock subject to this Warrant shall be proportionately
decreased, effective at the close of business on the date of such
subdivision, stock dividend or combination, as the case may be.
3.3. Conversions; Reorganizations; Reclassifications; Merger; Sales.
In case of any capital reorganization or any reclassification of the
capital stock of the Company or, subject to the provisions of Section 7
hereof, in case of the consolidation or merger of the Company with or into
another corporation or the conveyance of all or substantially all of the
assets of the Company to another corporation, this Warrant shall
thereafter be exercisable for the number of shares of stock or other
securities or property to which a holder of the number of shares of
Warrant Stock deliverable upon exercise of the Warrant would have been
entitled to upon such conversion, reorganization, reclassification,
consolidation, merger or conveyance and, in any such case, appropriate
adjustment as determined by the Board of Directors of the Company shall be
made in the application of the provisions herein set forth with respect to
the rights and interests thereafter of the Holder to the end that the
provisions set forth herein shall thereafter be applicable, as nearly as
reasonably may be, in relation to any shares of stock or other property
thereafter deliverable upon the exercise of the Warrant.
3.4. Certificate of Adjustment. When any adjustment is required to
be made in the Purchase Price, the Company shall promptly mail to the
Holder a certificate setting forth the Purchase Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment. Delivery of such certificate shall be deemed to be a final and
binding determination with respect to such adjustment unless challenged by
the Holder within ten (10) days of receipt thereof. Such certificate shall
also set forth the kind and amount of stock or other securities or
property into which this Warrant shall be exercisable following the
occurrence of any of the events specified in this Section 3.
4. Compliance with Securities Act.
4.1 Unregistered Securities. The Holder acknowledges that this
Warrant and the Warrant Stock have not been registered under the
Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any successor legislation (the "SECURITIES ACT"), and
agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Stock in the absence of
(i) an effective registration statement under the Securities Act covering
this Warrant or such Warrant Stock and registration or qualification of
this Warrant or such Warrant Stock under any applicable "blue sky" or
state securities law then in effect, or (ii) an opinion of counsel,
satisfactory to the Company, that such registration and qualification are
not required. The Company may delay issuance of the Warrant Stock until
completion of any action or obtaining of any consent, which the Company
deems necessary under any applicable law (including without limitation
state securities or "blue sky" laws).
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4.2 Investment Letter. Without limiting the generality of Section
4.1, unless the offer and sale of any shares of Warrant Stock shall have
been effectively registered under the Securities Act, the Company shall be
under no obligation to issue the Warrant Stock unless and until the Holder
shall have executed an investment letter in form and substance reasonably
satisfactory to the Company, including a warranty at the time of such
exercise that the Holder is acquiring such shares for its own account, for
investment and not with a view to, or for sale in connection with, the
distribution of any such shares.
4.3 Legend. Certificates delivered to the Holder pursuant to Section
1.3 shall bear the following legend or a legend in substantially similar
form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN TAKEN FOR
INVESTMENT AND THEY MAY NOT BE SOLD OR OTHERWISE TRANSFERRED BY ANY
PERSON, INCLUDING A PLEDGEE, IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR AN OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY, THAT AN EXEMPTION FROM REGISTRATION IS THEN AVAILABLE."
5. Reservation of Stock. The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such shares of Warrant Stock and other stock, securities and property, as from
time to time shall be issuable upon the exercise of this Warrant. The Company
covenants that all shares of Warrant Stock so issuable will, when issued, be
duly and validly issued and fully paid and nonassessable.
6. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
7. Termination Upon Certain Events. If there shall be a merger or
consolidation of the Company with or into another corporation, a sale of all or
substantially all of the Company's capital stock or assets to any other person
or the liquidation or dissolution of the Company, then as a part of such
transaction, at the Company's option, either:
(a) provision shall be made so that the Holder shall thereafter be
entitled to receive the number of shares of stock or other securities or
property of the Company, or of the successor corporation resulting from
the merger, consolidation, or sale to which the Holder would have been
entitled if the Holder had exercised its rights pursuant to the Warrant
immediately prior thereto (and, in such case, appropriate adjustment shall
be made in the application of the provisions of this Section 7(a) to the
end that the provisions of this Section 7 shall be applicable after that
event in as nearly equivalent a manner as may be practicable); or
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(b) this Warrant shall terminate on the effective date of such
merger, consolidation or sale (the "TERMINATION DATE") and become null and
void, provided that if this Warrant shall not have otherwise terminated or
expired, (1) the Company shall have given the Holder written notice of
such Termination Date at least fifteen (15) days prior to the occurrence
thereof and (2) the Holder shall have the right until 5:00 p.m., Eastern
Standard Time, on the day immediately prior to the Termination Date to
exercise its rights hereunder to the extent not previously exercised.
The provisions of this Section 7 shall not apply to any merger or consolidation
involving (1) only a change in the state of incorporation of the Company, or (2)
a merger of the Company with or into a wholly-owned subsidiary of the Company
which is incorporated in the United States of America.
8. Cashless Exercise. If the FMV (as defined below) of the Warrant
Stock exceeds the Purchase Price, in lieu of paying the Purchase Price in cash
as set forth in Section 1.1 hereof, the Holder may exercise this Warrant
partially or in full (to the extent not previously exercised) pursuant to a
Cashless Exercise (as defined below). For purposes of this Warrant, Cashless
Exercise shall mean an event whereby the Company shall issue to the Holder the
number of shares of Warrant Stock determined as follows:
N = B-A
---
Y
where:
N = the number of shares of Warrant Stock that may be issued to Holder
Y = the FMV of one share of Warrant Stock
A = the aggregate Warrant Price (the number of shares of Warrant Stock for
which this Warrant is exercisable x Purchase Price)
B = the aggregate FMV (i.e., FMV x the number of shares of Warrant Stock
for which this Warrant is exercisable)
For purposes of this Section 8, "FMV" of one share of Warrant Stock shall mean,
as of any date: (a) the fair market value of the shares of Common Stock, as
determined from the last closing price per share of the Common Stock on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading, (b) the fair market value of the shares of Common Stock, as
determined from the last reported sales price per share of the Common Stock on
the Nasdaq National Market or the Nasdaq Small-Cap Market (collectively,
"NASDAQ") if the Common Stock is not listed or traded on any such exchange, (c)
the fair market value of the shares of Common Stock, as determined from the
average of the bid and asked price per share as reported in the "pink sheets"
published by the National Quotation Bureau, Inc. if the Common Stock is not
listed or traded on any exchange or Nasdaq, or (d) if such quotations are not
available, the fair market value per share of the Common Stock on the date such
notice was
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received by the Company as reasonably determined in good faith by the Board of
Directors of the Company.
9. Transferability. Without the prior written consent of the Company,
which consent shall not be unreasonably withheld, the Warrant shall not be
assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process.
Any transfer pursuant to Section 9 shall be affected upon surrender of this
Warrant with a properly executed assignment (in the form attached hereto as
Exhibit B) at the principal office of the Company (or, if another office or
agency has been designated by the Company for such purpose, then at such other
office or agency).
10. No Rights as Stockholder. Until the exercise of this Warrant, the
Holder shall not have or exercise any rights by virtue hereof as a stockholder
of the Company.
11. Notices.
(a) All notices, requests, consents and other communications under
this Warrant shall be in writing and be deemed delivered (i) seven
business days after being sent by registered or certified mail, return
receipt requested, postage prepaid or (ii) three business days after being
sent via a reputable nationwide overnight courier service guaranteeing
next business day delivery, in each case to the intended recipient as set
forth below:
If to the Company, at 0 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000, Attention:
Chief Executive Officer with a copy to Mintz, Levin, Cohen, Ferris,
Glovsky and Popeo, P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
Attention: Xxxxxxxxxxx Xxxx, Esq.
If to the Holder, at its address on the signature page hereto, or at such
other address as may be furnished in writing by such Holder to the
Company.
(b) Either party may give any notice, request, consent or other
communication under this Warrant using any other means (including, without
limitation, personal delivery, messenger service, telecopy, first class
mail or electronic mail), but no such notice, request, consent or other
communication shall be deemed to have been duly given unless and until it
is actually received by the party for whom it is intended. Either party
may change the address to which notices, requests, consents or other
communications hereunder are to be delivered by giving the other party
notice in the manner set forth in this Section.
12. Waivers and Modifications. This Warrant or any provisions hereof may
be changed, waived, discharged or terminated only by a statement in writing
signed by the Company and the Holder.
13. Headings. The headings in this Warrant are for convenience of
reference only and shall in no way modify or affect the meaning or construction
of any of the terms or provisions of this Warrant.
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14. Governing Law. This Warrant will be governed by and construed in
accordance with and governed by the law of the State of Delaware, without giving
effect to the conflict of law principles thereof.
15. Impairment. The Company shall not, by amendment of its Amended and
Restated Certificate of Incorporation or Bylaws, or through any other means,
directly or indirectly, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant and shall at all times in good faith assist in
the carrying out of all such terms and in the taking of all such action as may
be necessary or appropriate in order to protect the rights of the Holder against
impairment.
16. Taxes. The issuance of the Warrant Stock upon the exercise of this
Warrant, and the delivery of certificates or other instruments representing such
Warrant Stock, shall be made without charge to the Holder for any tax or other
charge of whatever nature in respect of such issuance and the Company shall bear
any such taxes in respect of such issuance.
17. Replacement Warrant. The Company and the Holder hereby agree that this
Warrant is issued to the Holder pursuant to an Affidavit of Lost Warrant
Certificate, dated as of the date hereof, in replacement of, and supercedes in
all respects, that certain Warrant dated January 17, 1996 issued to the Holder.
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IN WITNESS WHEREOF, the Company and the Holder have caused this Warrant to
be executed by its duly authorized representative.
THE COMPANY:
Predix Pharmaceuticals Holdings, Inc.
By: /s/ XXXXXXX XXXXXXXX
--------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
THE HOLDER:
By: /s/ XXXXXX XXXXXXX
------------------
Name:
Title:
Address:
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EXHIBIT A
PURCHASE FORM
To: PREDIX PHARMACEUTICALS HOLDINGS, INC.
0 Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
The undersigned pursuant to the provisions set forth in the attached
Warrant (No. RW-RS01), hereby irrevocably elects to purchase ________ shares of
the Common Stock, par value $.01 per share, of Predix Pharmaceuticals Holdings,
Inc. (the "COMMON STOCK") (the Common Stock for which the Warrant may be
exercised or converted shall be known herein as the "WARRANT STOCK"), covered by
such Warrant and herewith [makes payment of $_____________/elects to exercise
the Warrant pursuant to the Cashless Exercise set forth in Section 8 of the
Warrant], representing the full purchase price for such shares at the price per
share provided for in such Warrant.
The undersigned is aware that the Warrant Stock has not been and will not
be registered under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), or any state securities laws. The undersigned understands that reliance
by the Company on exemptions under the Securities Act is predicated in part upon
the truth and accuracy of the statements of the undersigned in this Purchase
Form.
The undersigned represents and warrants that (1) it has been furnished
with all information which it deems necessary to evaluate the merits and risks
of the purchase of the Warrant Stock, (2) it has had the opportunity to ask
questions concerning the Warrant Stock and the Company and all questions posed
have been answered to its satisfaction, (3) it has been given the opportunity to
obtain any additional information it deems necessary to verify the accuracy of
any information obtained concerning the Warrant Stock and the Company and (4) it
has such knowledge and experience in financial and business matters that it is
able to evaluate the merits and risks of purchasing the Warrant Stock and to
make an informed investment decision relating thereto.
The undersigned hereby represents and warrant that it is purchasing the
Warrant Stock for its own account for investment and not with a view to the sale
or distribution of all or any part of the Warrant Stock.
The undersigned understands that because the Warrant Stock has not been
registered under the Securities Act, it must continue to bear the economic risk
of the investment for an indefinite period of time and the Warrant Stock cannot
be sold unless it is subsequently registered under applicable federal and state
securities laws or an exemption from such registration is available.
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The undersigned agrees that it will in no event sell or distribute or
otherwise dispose of all or any part of the Warrant Stock unless (1) there is an
effective registration statement under the Securities Act and applicable state
securities laws covering any such transaction involving the Warrant Stock, or
(2) the Company receives an opinion satisfactory to the Company of the
undersigned's legal counsel stating that such transaction is exempt from
registration. The undersigned consents to the placing of a legend on its
certificate for the Warrant Stock stating that the Warrant Stock has not been
registered and setting forth the restriction on transfer contemplated hereby and
to the placing of a stop transfer order on the books of the Company and with any
transfer agents against the Warrant Stock until the Warrant Stock may be legally
resold or distributed without restriction.
The undersigned has considered the federal and state income tax
implications of the exercise of the Warrant and the purchase and subsequent sale
of the Warrant Stock.
____________________________________
Dated: ____________________________________
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EXHIBIT B
FORM OF ASSIGNMENT
(To be executed by the Holder if such Holder
desires to transfer the Warrant)
FOR VALUE RECEIVED ________________________________ (the "TRANSFEROR")
hereby sells, assigns and transfers unto _____________________________________
(the "TRANSFEREE")
(Please print name and address of transferee)
this Warrant, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint ______________________ as its Attorney
to transfer the such Warrant on the books of Predix Pharmaceuticals Holdings,
Inc., with full power of substitution. The Transferor has provided a written
instrument to the Company notifying the Company of such transfer and pursuant to
which the Transferee hereunder has agreed in writing to be bound by the terms of
this Warrant.
Dated: Signature______________________________
(Signature must conform in all respects to name of
Holder as specified on the face of the Transaction Warrant)
_____________________________________
(Insert Social Security or other Identifying
Number of Holder)
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