Exhibit 10.59
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED, OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL (WHICH
MAY BE COMPANY COUNSEL) REASONABLY SATISFACTORY
TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933.
WARRANT AGREEMENT
To Purchase Shares of the Common Stock of
ONTOGENY, INC.
Dated as of September 1, 1999 (the "Effective Date")
WHEREAS, Ontogeny, Inc., a Delaware corporation (the "Company") has entered
into a Master Lease Agreement dated as of October 25, 1994, Equipment Schedules
Nos. VL-4 and VL-5 dated September 1, 1999, and related Schedules (the "Leases")
with Comdisco, Inc., a Delaware corporation (the "Warrantholder"); and
WHEREAS, the Company desires to grant to Warrantholder, in consideration
for such Leases, the right to purchase shares of its Common Stock;
NOW, THEREFORE, in consideration of the Warrantholder executing and
delivering such Leases and in consideration of mutual covenants and agreements
contained herein, the Company and Warrantholder agree as follows:
1. GRANT OF THE RIGHT TO PURCHASE COMMON STOCK.
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The Company hereby grants to the Warrantholder, and the Warrantholder is
entitled, upon the terms and subject to the conditions hereinafter set forth, to
subscribe to and purchase, from the Company, 10,000 fully paid and non-
assessable shares of the Company's Convertible Common Stock ("Common Stock") at
a purchase price of $5.00 per share (the "Exercise Price"). The number and
purchase price of such shares are subject to adjustment as provided in Section 8
hereof.
2. TERM OF THE WARRANT AGREEMENT.
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(a) Except as otherwise provided for herein, the term of this Warrant
Agreement and the right to purchase Common Stock as granted herein shall
commence on the Effective Date and shall be exercisable for a period of ten (10)
years after the date of this Agreement.
(b) Acceleration of Term Upon Initial Public Offering. Notwithstanding the
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term of this Warrant Agreement fixed pursuant to Section 2(a) hereof,
Warrantholder's right to purchase Common Stock as granted herein shall expire,
if not previously exercised, immediately upon the closing of the issuance and
sale of shares of Common Stock of the
Company in the Company's first public offering of securities for its own account
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Initial Public Offering"), provided that the underwriters
request that the Warrantholder exercise this Warrant.
The Company shall notify the Warrantholder if the Initial Public Offering
is proposed, within a reasonable period of time prior to the filing of a
registration statement and if the Company fails to deliver such written notice
within a reasonable period of time, anything to the contrary in this Warrant
Agreement notwithstanding, the rights to purchase will not expire until ten (10)
business days after the Company delivers such notice to the Warrantholder. Such
notice shall also contain such details of the proposed Initial Public Offering
as are reasonable in the circumstances and notice that this Warrant Agreement is
expected to expire upon closing thereof. If such closing does not take place,
the Company shall promptly notify the Warrantholder that such proposed
transaction has been terminated. Anything to the contrary in this Warrant
Agreement notwithstanding, the Warrantholder may rescind any exercise of its
purchase rights promptly after such notice of termination of the proposed
transaction if the exercise of Warrants occurred after the Company notified the
Warrantholder that the Initial Public Offering was proposed or if the exercise
were otherwise precipitated by such proposed Initial Public Offering. In the
event of such rescission, the Warrants will continue to be exercisable on the
same terms and conditions.
3. EXERCISE OF THE PURCHASE RIGHTS.
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The purchase rights set forth in this Warrant Agreement are exercisable by
the Warrantholder, in whole or in part, at any time, or from time to time, prior
to the expiration of the term set forth in Section 2 above, by tendering to the
Company at its principal office a notice of exercise in the form attached hereto
as Exhibit I (the "Notice of Exercise"), duly completed and executed. Promptly
upon receipt of the Notice of Exercise and the payment of the purchase price in
accordance with the terms set forth below, and in no event later than twenty-one
(21) days thereafter, the Company shall issue to the Warrantholder a certificate
for the number of shares of Common Stock purchased and shall execute the Notice
of Exercise indicating the number of shares which remain subject to future
purchases, if any.
The Exercise Price may be paid at the Warrantholder's election either (i)
by cash or check, or (ii) by surrender of Warrants ("Net Issuance") as
determined below. If the Warrantholder elects the Net Issuance method, the
Company will issue Common Stock in accordance with the following formula:
X = Y(A-B)
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A
Where: X= the number of shares of Common Stock to be issued to the
Warrantholder.
Y = the number of shares of Common Stock requested to be exercised
under this Warrant Agreement.
A = the fair market value of one (1) share of Common Stock.
B = the Exercise Price.
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As used herein, current fair market value of Common Stock shall mean with
respect to each share of Common Stock:
(i) if the exercise is in connection with an initial public
offering, and if the Company's Registration Statement relating to such
public offering has been declared effective by the SEC, then the fair
market value shall be the initial "Price to Public" specified in the final
prospectus with respect to the offering;
(ii) if this Warrant is exercised after, and not in connection with
the Company's Initial Public Offering, and:
(a) if traded on a securities exchange, the fair market value
shall be deemed to be the average of the closing prices
over a twenty-one (21) day period ending three days before
the day the current fair market value of the securities is
being determined; or
(b) if actively traded over-the-counter, the fair market value
shall be deemed to be the average of the closing bid and
asked prices quoted on the NASDAQ system (or similar
system) over the twenty-one (21) day period ending three
days before the day the current fair market value of the
securities is being determined;
(iii) if at any time the Common Stock is not listed on any securities
exchange or quoted in the NASDAQ System or the over-the-counter market, the
current fair market value of Common Stock shall be the highest price per
share which the Company could obtain from a willing buyer (not a current
employee or director) for shares of Common Stock sold by the Company, from
authorized but unissued shares, as determined in good faith by its Board of
Directors, unless the Company shall become subject to a merger, acquisition
or other consolidation pursuant to which the Company is not the surviving
party, in which case the fair market value of Common stock shall be deemed
to be the value per share of Common Stock received by the holders of the
Company's Common Stock on a common equivalent basis pursuant to such merger
or acquisition.
Upon partial exercise by either cash or Net Issuance, the Company shall
promptly issue an amended Warrant Agreement representing the remaining number of
shares purchasable hereunder. All other terms and conditions of such amended
Warrant Agreement shall be identical to those contained herein, including, but
not limited to the Effective Date hereof.
4. RESERVATION OF SHARES.
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(a) Authorization and Reservation of Shares. During the term of this
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Warrant Agreement, the Company will at all times have authorized and reserved a
sufficient number of shares of its Common Stock to provide for the exercise of
the rights to purchase Common Stock as provided for herein.
(b) Registration or Listing. If any shares of Common Stock required to be
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reserved hereunder require registration with or approval of any governmental
authority under
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any Federal or State law (other than any registration under the 1933 Act, as
then in effect, or any similar Federal statute then enforced, or any state
securities law, required by reason of any transfer involved in such conversion),
or listing on any domestic securities exchange, before such shares may be issued
upon conversion, the Company will, at its expense and as expeditiously as
possible, use its best efforts to cause such shares to be duly registered,
listed or approved for listing on such domestic securities exchange, as the case
may be.
5. NO FRACTIONAL SHARES OR SCRIP.
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No fractional shares or scrip representing fractional shares shall be
issued upon the exercise of the Warrant, 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.
6. NO RIGHTS AS SHAREHOLDER.
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This Warrant Agreement does not entitle the Warrantholder to any voting
rights or other rights as a shareholder of the Company prior to the exercise of
the Warrant.
7. WARRANTHOLDER REGISTRY.
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The Company shall maintain a registry showing the name and address of the
registered holder of this Warrant Agreement.
8. ADJUSTMENT RIGHTS.
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The purchase price per share and the number of shares of Common Stock
purchasable hereunder are subject to adjustment, as follows:
(a) Merger and Sale of Assets. If at any time there shall be a capital
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reorganization of the shares of the Company's stock (other than a combination,
reclassification, exchange or subdivision of shares otherwise provided for
herein), or a merger or consolidation of the Company with or into another
corporation when the Company is not the surviving corporation, or the sale of
all or substantially all of the Company's properties and assets to any other
person (hereinafter referred to as a "Merger Event"), then, as a part of such
Merger Event, lawful provision shall be made so that the Warrantholder shall
thereafter be entitled to receive, upon exercise of the Warrant, the number and
kind of shares of stock or other securities of the successor corporation or cash
or other property that the Warrantholder would have been entitled to receive if
such Warrantholder had exercised this Warrant immediately prior to the Merger
Event. In any such case, appropriate adjustment (as determined in good faith by
the Company's Board of Directors) shall be made in the application of the
provisions of this Warrant Agreement with respect to the rights and interest of
the Warrantholder after the Merger Event to the end that the provisions of this
Warrant Agreement (including adjustments of the Exercise Price and number of
shares of Common Stock purchasable) shall be applicable to the greatest extent
possible.
(b) Reclassification of Shares. If the Company at any time shall, by
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combination, reclassification, exchange or subdivision of securities or
otherwise, change any of the Common Stock exist into the same or a different
number of securities of any other class or classes, this Warrant Agreement shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
Agreement
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immediately prior to such combination, reclassification, exchange, subdivision
or other change.
(c) Subdivision or Combination of Shares. If the Company at any time
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shall combine or subdivide its Common Stock, the Exercise Price shall be
proportionately decreased in the case of a subdivision, or proportionately
increased in the case of a combination.
(d) Notice of Adjustments. If: (i) the Company shall declare any dividend
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or distribution upon its stock, whether in cash, property, stock or other
securities; (ii) the Company shall offer for subscription pro rata to the
holders of any class of its Common Stock or other convertible stock any
additional shares of stock of any class or other rights; (iii) there shall be
any Merger Event; or (iv) there shall be any voluntary or involuntary
dissolution, liquidation or winding up of the Company; then, in connection with
each such event, the Company shall send to the Warrantholder (A) at least twenty
(20) days' prior written notice of the date on which the books of the Company
shall close or a record shall be taken for such dividend, distribution,
subscription rights (specifying the date on which the holders of Common Stock
shall be entitled thereto) or for determining rights to vote in respect of such
Merger Event, dissolution, liquidation or winding up; and (8) in the case of any
such Merger Event, dissolution, liquidation or winding up, at least twenty (20)
days' prior written notice of the date when the same shall take place (and
specifying the date on which the holders of Common Stock shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such Merger Event, dissolution, liquidation or winding up).
Each such written notice shall set forth, in reasonable detail, (i) the
event requiring the adjustment, (ii) the amount of the adjustment, (iii) the
method by which such adjustment was calculated, (iv) the Exercise Price, and (v)
the number of shares subject to purchase hereunder after giving effect to such
adjustment, and shall be given by first class mail, postage prepaid, addressed
to the Warrantholder, at the address as shown on the books of the Company.
(e) Timely Notice. Failure to timely provide such notice required by
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subsection (e) above shall entitle Warrantholder to retain the benefit of the
applicable notice period notwithstanding anything to the contrary contained in
any insufficient notice received by Warrantholder. The notice period shall begin
on the date Warrantholder actually receives a written notice containing all the
information specified above.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
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(a) Reservation of Common Stock. The Common Stock issuable upon exercise
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of the Warrantholder's rights has been duty and validly reserved and, when
issued in accordance with the provisions of this Warrant Agreement, will be
validly issued, fully paid and non-assessable, and will be free of any taxes,
liens, charges or encumbrances of any nature whatsoever; provided, however, that
the Common Stock issuable pursuant to this Warrant Agreement may be subject to
restrictions on transfer under state and/or Federal securities laws. The Company
has made available to the Warrantholder true, correct and complete copies of its
Charter. The issuance of certificates for shares of Common Stock upon exercise
of the Warrant shall be made without charge to the Warrantholder for any
issuance tax in respect thereof, or other cost incurred by the Company in
connection with such exercise and the related issuance of shares of Common
Stock. The Company shall not be required to pay any tax which may be payable in
respect of any transfer involved and the issuance and delivery of any
certificate in a name other than that of the Warrantholder.
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(b) Due Authority. The execution and delivery by the Company of this
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Warrant Agreement and the performance of all obligations of the Company
hereunder, including the issuance to Warrantholder of the right to acquire the
shares of Common Stock, have been duly authorized by all necessary corporate
action on the part of the Company, and the Leases and this Warrant Agreement are
not inconsistent with the Company's Charter or Bylaws, do not contravene any law
or governmental rule, regulation or order applicable to it, do not and will not
contravene any provision of, or constitute a default under, any indenture,
mortgage, contract or other instrument to which it is a party or by which it is
bound, and the Leases and this Warrant Agreement constitute legal, valid and
binding agreements of the Company, enforceable in accordance with their
respective terms.
(c) Consents and Approval. No consent or approval of, giving of notice
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to, registration with, or taking of any other action in respect of any state,
Federal or other governmental authority or agency is required with respect to
the execution, delivery and performance by the Company of its obligations under
this Warrant Agreement, except for any filing required by applicable state
securities law, which filings will be effective by the time required thereby.
(d) Issued Securities. All issued and outstanding shares of Common Stock,
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Preferred Stock or any other securities of the Company have been duly authorized
and validly issued and are fully paid and nonassessable. All outstanding shares
of Common Stock, Preferred Stock and any other securities were issued in full
compliance with all Federal and state securities laws. In addition:
(i) The authorized capital of the Company consists of (A)
50,000,000 shares of common Stock, $.01 par value per share (the "Common
Stock"), 2,456,435 shares which are issued and outstanding, (B) 5,000,000
shares of undesignated preferred stock, none of which are issued and
outstanding, (C) 4,922,299 shares of Series A Convertible Preferred Stock,
of which 4,853,334 shares of which are issued and outstanding, (D)
8,000,000 shares of Series B Convertible Preferred Stock, 7,447,223 shares
of which are issued and outstanding, (E) 1,000,000 shares, collectively, of
Series C Convertible Preferred Stock and Series D Convertible Preferred
Stock, all of which are issued and outstanding, (G) 10,000,000 shares of
Series E Convertible Preferred Stock, all of which are issued and
outstanding and (H) 10,000,000 shares of Series F Convertible Preferred
Stock, 8,379,593 shares of which are issued and outstanding.
(ii) The Company has issued warrants to purchase 25,000 shares of
its Common Stock at an average exercise price of $2.50 per share, 68,965
shares of its Series A Convertible Preferred Stock at an average exercise
price of $0.87 per share and 142,222 shares of its Series B Convertible
Preferred Stock at an average exercise price of $1.125 per share. The
Company has reserved 4,000,000 shares of Common Stock for issuance pursuant
to its 1995 Stock Option Plan. The Company has reserved 3,040,000 shares of
Common Stock for issuance pursuant to its 1994 Restricted Stock Plan. There
are no other options, warrants, conversion privileges or other rights
presently outstanding to purchase or otherwise acquire any authorized but
unissued shares of the Company's capital stock or other securities of the
Company.
(iii) Except as set forth in the Registration Rights and Right of
First Refusal Agreement dated October 30, 1998 between the Company and
certain shareholders and the Stock Purchase Agreement dated September 2,
1994 between the Company
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and a certain Institution, no shareholder of the Company has preemptive
rights to purchase new issuances of the Company's capital stock.
(e) Insurance. The Company has in full force and effect insurance
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policies, with extended coverage, insuring the Company and its property and
business against such losses and risks, and in such amounts, as are customary
for corporations engaged in a similar business and similarly situated.
(f) Other Commitments to Register Securities. Except as set forth in the
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Registration Rights and Right of First Refusal Agreement dated October 30, 1998
between the Company and certain shareholders and the Stock Purchase Agreement
dated September 2, 1994 between the Company and a certain Institution, the
Company is not, pursuant to the terms of any other agreement currently in
existence, under any obligation to register under the 1933 Act any of its
presently outstanding securities or any of its securities which may hereafter be
issued.
(g) Exempt Transaction. Subject to the accuracy of the Warrantholder's
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representations in Section 10 hereof, the issuance of the Common Stock upon
exercise of this Warrant will constitute a transaction exempt from (i) the
registration requirements of Section 5 of the 1933 Act, in reliance upon Section
4(2) thereof, and (ii) the qualification requirements of the Illinois Corporate
Securities Law, in reliance upon Section 4 (G) thereof.
(h) Compliance with Rule 144. At the written request of the
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Warrantholder, who proposes to sell Common Stock issuable upon the exercise of
the Warrant in compliance with Rule 144 promulgated by the Securities and
Exchange Commission, the Company shall furnish to the Warrantholder, within ten
days after receipt of such request, a written statement confirming the Company's
compliance with the filing requirements of the Securities and Exchange
Commission as set forth in such Rule, as such Rule may be amended from time to
time.
10. REPRESENTATIONS AND COVENANTS OF THE WARRANTHOLDER.
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This Warrant Agreement has been entered into by the Company in reliance
upon the following representations and covenants of the Warrantholder:
(a) Investment Purpose. The right to acquire Common Stock or the Common
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Stock issuable upon exercise of the Warrantholder's rights contained herein will
be acquired for investment and not with a view to the sale or distribution of
any part thereof, and the Warrantholder has no present intention of selling or
engaging in any public distribution of the same except pursuant to a
registration or exemption.
(b) Private Issue. The Warrantholder understands (i) that the Common Stock
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issuable upon exercise of this Warrant is not registered under the 1933 Act or
qualified under applicable state securities laws on the ground that the issuance
contemplated by this Warrant Agreement will be exempt from the registration and
qualifications requirements thereof, and (ii) that the Company's reliance on
such exemption is predicated on the representations set forth in this Section
10.
(c) Disposition of Warrantholder's Right. In no event will the
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Warrantholder make a disposition of any of its rights to acquire Common Stock or
Common Stock issuable upon exercise of such rights unless and until (i) it shall
have notified the Company of the
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proposed disposition, and (ii) if requested by the Company, it shall have
furnished the Company with an opinion of counsel (which counsel may either be
inside or outside counsel to the Warrantholder) satisfactory to the Company and
its counsel to the effect that (A) appropriate action necessary for compliance
with the 1933 Act has been taken, or (B) an exemption from the registration
requirements of the 1933 Act is available. Notwithstanding the foregoing, the
restrictions imposed upon the transferability of any of its rights to acquire
Common Stock or Common Stock issuable on the exercise of such rights do not
apply to transfers from the beneficial owner of any of the aforementioned
securities to its nominee or from such nominee to its beneficial owner, and
shall terminate as to any particular share of Common Stock when (1) such
security shall have been effectively registered under the 1933 Act and sold by
the holder thereof in accordance with such registration or (2) such security
shall have been sold without registration in compliance with Rule 144 under the
1933 Act, or (3) a letter shall have been issued to the Warrantholder at its
request by the staff of the Securities and Exchange Commission or a ruling shall
have been issued to the Warrantholder at its request by such Commission stating
that no action shall be recommended by such staff or taken by such Commission,
as the case may be, if such security is transferred without registration under
the 1933 Act in accordance with the conditions set forth in such letter or
ruling and such letter or ruling specifies that no subsequent restrictions on
transfer are required. Whenever the restrictions imposed hereunder shall
terminate, as hereinabove provided, the Warrantholder or holder of a share of
Common Stock then outstanding as to which such restrictions have terminated
shall be entitled to receive from the Company, without expense to such holder,
one or more new certificates for the Warrant or for such shares of Common Stock
not bearing any restrictive legend.
Notwithstanding anything to the contrary contained herein:
(i) The Warrantholder shall not sell or transfer or agree to sell
or transfer any rights to acquire shares of stock of the Company or any
shares of stock of the Company (collectively, the "Offered Shares"), unless
in each case the Warrantholder shall have first complied with this Section
10 (c). The Warrantholder shall deliver to the Company a written notice of
any proposed or intended sale of Offered Shares (the "Offer"), which Offer
shall (a) identify the Offered Shares, (b) describe the price and other
terms upon which they are to be sold or transferred, and the number or
amount of the Offered Shares to be sold or transferred, and (c) offer to
sell to the Company all (but not less than all) such Offered Shares. The
Company shall have the right, for a period of five (5) days following
delivery of the Offer, to purchase or acquire, at a price and upon the
other terms specified in the Offer, any and all Offered Shares described
above. The Offer by its term shall remain open and irrevocable for such 5-
day period.
(ii) To accept an Offer, the Company must deliver a written notice
to the Warrantholder prior to the end of the 5-day period of the Offer (the
"Notice of Acceptance"). If the Company does not accept the Offer, the
Warrantholder may sell the Offered Shares on the terms and conditions set
forth in the Offer for a period of forty-five (45) days following the end
of the 5-day period of the Offer.
(iii) Any Offered Shares not acquired by the Company or other persons
in accordance with this Section 10 (c) may not be issued, sold or exchanged
until they are again offered to the Company under the procedures specified
in this Agreement.
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(iv) The provisions of this Section 10 (c) shall terminate upon the
closing of the Company's initial public offering of shares of Common Stock
pursuant to an effective registration statement under the Securities Act.
(d) Financial Risk. The Warrantholder has such knowledge and experience
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in financial and business matters and in investing in companies similar to the
Company as to be capable of evaluating the merits and risks of its investment,
and has the ability to bear the economic risks of its investment.
(e) Authority. The Warrantholder has full power and authority to enter
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into and to perform this Agreement in accordance with its terms. The
Warrantholder has not been organized, reorganized or recapitalized specifically
for the purpose of investing in the Company.
(f) Risk of No Registration. The Warrantholder understands that if the
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Company does not register with the Securities and Exchange Commission pursuant
to Section 12 of the 1933 Act, or file reports pursuant to Section 15(d), of the
Securities Exchange Act of 1934 (the "1934 Act"), or if a registration statement
covering the securities under the 1933 Act is not in effect when it desires to
sell (i) the rights to purchase Common Stock pursuant to this Warrant Agreement,
or (ii) the Common Stock issuable upon exercise of the right to purchase, it may
be required to hold such securities for an indefinite period. The Warrantholder
also understands that any sale of its rights of the Warrantholder to purchase
Common Stock or Common Stock which might be made by it in reliance upon Rule 144
under the 1933 Act may be made only in accordance with the terms and conditions
of that Rule.
11. TRANSFERS.
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(a) Subject to the terms and conditions contained in Section 10 hereof,
Warrant Agreement and all rights hereunder are transferable in whole or in part
by the Warrantholder and any successor transferee, provided, however, in no
event shall the number of transfers of the rights and interests in all of the
Warrants exceed three (3) transfers. The transfer shall be recorded on the books
of the Company upon receipt by the Company of a notice of transfer in the form
attached hereto as Exhibit II (the "Transfer Notice"), at its principal offices
and the payment to the Company of all transfer taxes and other governmental
charges imposed on such transfer.
(b) Legends. Each certificate or agreement representing rights to acquire
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shares of Common Stock, Common Stock issuable upon the exercise of such rights
or shares of Common Stock issuable upon the conversion of the Common Stock shall
bear a legend substantially in the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged or
hypothecated unless and until such shares are registered under
such Act, or an opinion of counsel satisfactory to the Company
is obtained to the effect that such registration is not
required."
The foregoing legend shall be removed from the certificates representing
any Restricted Shares, at the request of the holder thereof, at such time as
they become eligible for resale pursuant to Rule 144 under the Securities Act.
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(c) If any of the provisions set forth in this Agreement are violated, the
Company shall not be required (i) to transfer on its books any of the rights to
acquire shares of Common Stock, Common Stock issuable upon the exercise of such
rights or shares of Common Stock issuable upon the conversion of the Common
Stock, or (ii) to treat as owner of such rights to acquire shares of Common
Stock, Common Stock issuable upon the exercise of such rights or shares of
Common Stock issuable upon the conversion of the Common Stock or to pay
dividends to any transferee to whom any such rights to acquire shares of Common
Stock, Common Stock issuable upon the exercise of such rights or shares of
Common stock issuable upon the conversion of the Common Stock shall have been so
sold or transferred.
12. MISCELLANEOUS.
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(a) Effective Date. The provisions of this Warrant Agreement shall be
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construed and shall be given effect in all respects as if it had been executed
and delivered by the Company on the date hereof. This Warrant Agreement shall be
binding upon any successors or assigns of the Company.
(b) Attorney's Fees. In any litigation, arbitration or court proceeding
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between the Company and the Warrantholder relating hereto, the prevailing party
shall be entitled to attorneys' fees and expenses and all costs of proceedings
incurred in enforcing this Warrant Agreement.
(c) Governing Law. This Warrant Agreement shall be governed by and
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construed for all purposes under and in accordance with the laws of the State of
Illinois.
(d) Counterparts. This Warrant Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Notices. Any notice required or permitted hereunder shall be given in
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writing and shall be deemed effectively given upon personal delivery, facsimile
transmission (provided that the original is sent by personal delivery or mail as
hereinafter set forth) or seven (7) days after deposit in the United States
mail, by registered or certified mail, addressed (i) to the Warrantholder at
0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, attention: Xxxxx Xxxx, cc:
General Counsel, (and/or, if by facsimile, (000) 000-0000 AND (000) 000-0000)
and (ii) to the Company at 45 Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000,
attention: Vice-President, Finance(and/or if by facsimile, (000) 000-0000) , cc:
Xxxx & Xxxx, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, att: Xxxx X. Xxxxxx
or at such other address as any such party may subsequently designate by written
notice to the other party.
(f) Remedies. In the event of any default hereunder, the non-defaulting
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party may proceed to protect and enforce its rights either by suit in equity
and/or by action at law, including but not limited to an action for damages as a
result of any such default, and/or an action for specific performance for any
default where Warrantholder will not have an adequate remedy at law and where
damages will not be readily ascertainable.
(g) No Impairment of Rights. The Company will not, by amendment of its
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Charter or through any other means, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate in order to protect the rights of the
Warrantholder against impairment. Any and all costs
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incurred by the Company in assisting the Warrantholder in the protection of the
Warrantholder's rights shall be paid for, or reimbursed, by the Warrantholder.
(h) Survival. The representations, warranties, covenants and conditions of
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the respective parties contained herein or made pursuant to this Warrant
Agreement shall survive the execution and delivery of this Warrant Agreement.
(i) Severability. In the event any one or more of the provisions of this
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Warrant Agreement shall for any reason be held invalid, illegal or
unenforceable, the remaining provisions of this Warrant Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable valid, legal and enforceable provision, which
comes closest to the intention of the parties underlying the invalid, illegal or
unenforceable provision.
(j) Amendments. Any provision of this Warrant Agreement may be amended by
----------
a written instrument signed by the Company and by the Warrantholder.
(k) Additional Documents. The Company, upon execution of this Warrant
--------------------
Agreement, shall provide the Warrantholder with certified resolutions with
respect to the representations, warranties and covenants set forth in
subparagraphs (a) through (d), (f) and (g) of Section 9 above. The Company shall
also supply such other documents as the Warrantholder may from time to time
reasonably request.
IN WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement
to be executed by its officers thereunto duly authorized as of the Effective
Date.
ONTOGENY, INC. COMDISCO, INC.
By:_________________________________ By:_________________________________
Title:______________________________ Title:______________________________
-11-
EXHIBIT I
NOTICE OF EXERCISE
To: ________________________
(1) The undersigned Warrantholder hereby elects to purchase _______ shares of
the Common Stock of Ontogeny, Inc., pursuant to the terms of the Warrant
Agreement dated the 2nd day of December, 1997 (the "Warrant Agreement")
between Ontogeny, Inc. and the Warrantholder, and tenders herewith payment
of the purchase price for such shares in full, together with all applicable
transfer taxes, if any.
(2) In exercising its rights to purchase the Common Stock of Ontogeny, Inc.,
the undersigned hereby confirms and acknowledges the investment
representations and warranties made in Section 10 of the Warrant Agreement.
(3) 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)
Warrantholder: COMDISCO, INC.
By:_____________________________________
Title:__________________________________
Date:___________________________________
-12-
ACKNOWLEDGMENT OF EXERCISE
The undersigned _____________________________, hereby acknowledge receipt
of the "Notice of Exercise" from Comdisco, Inc., to purchase ______ shares of
the Common Stock of Ontogeny, Inc., pursuant to the terms of the Warrant
Agreement, and further acknowledges that ________ shares remain subject to
purchase under the terms of the Warrant Agreement.
Company: ONTOGENY, INC.
By:___________________________________
Title:________________________________
Date:_________________________________
-13-
EXHIBIT II
TRANSFER NOTICE
(To transfer or assign the foregoing Warrant Agreement execute this form
and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant Agreement and all rights
evidenced thereby are hereby transferred and assigned to:
___________________________________________________________(Please Print)
whose address is:________________________________________________________
Dated____________________________________________________________________
Holder's Signature ______________________________________________________
Holder's Address:________________________________________________________
Signature Guaranteed:____________________________________________________
NOTE: The signature to this Transfer Notice must correspond with the name as
it appears on the face of the Warrant Agreement, without alteration or
enlargement or any change whatever. Officers of corporations and those
acting in a fiduciary or other representative capacity should file
proper evidence of authority to assign the foregoing Warrant Agreement.
-14-
