Contract
EXHIBIT 4.2
THIS WARRANT HAS BEEN, AND THE SHARES OF COMMON STOCK WHICH MAY BE RECEIVED PURSUANT TO THE
EXERCISE OF THIS WARRANT WILL BE, ACQUIRED SOLELY FOR INVESTMENT AND NOT WITH A VIEW TO, OR FOR
RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF. NEITHER THIS WARRANT NOR SUCH SHARES
(TOGETHER, THE “SECURITIES”) HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”), OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR QUALIFICATION OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT
SUCH DISPOSITION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE ACT
AND ANY REGISTRATION OR QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE SECURITIES LAWS.
| No. WC-303 | Dated as of April 12, 2002 |
Warrant to Purchase Common Stock
This certifies that, for good and valuable consideration, Emisphere Technologies, Inc. (the
“Holder”) is entitled to purchase from ADVENTRX Pharmaceuticals, Inc., a Delaware corporation
formerly known as Biokeys Pharmaceuticals, Inc. (the “Company”), Fifty Thousand (50,000) fully paid
and nonassessable shares of Common Stock, par value $0.001 per share (“Common Stock”), of the
Company (as adjusted pursuant to Section 3 hereof) (the “Warrant Shares”) at a price per share
equal to Two Dollars and Fifty Cents ($2.50) (as adjusted pursuant to Section 3 hereof) (the
“Exercise Price”), subject to the provisions and upon the terms and conditions hereinafter set
forth.
1. Exercise; Payment.
(a) Exercise Period. This Warrant may be exercised in whole or part by the Holder
during the term (as set forth in Section 9) and in compliance with the provisions of this
Warrant at any time after the date of issuance set forth above (the “Warrant Date”), by the
surrender of this Warrant (with the notice of exercise form attached hereto as Exhibit A
(the “Notice of Exercise”) duly executed) at the principal office of the Company. If this
Warrant shall have been exercised in part, the Company shall, at the time of delivery of the
certificate or certificates representing Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased shares of Common Stock called
for by this Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or at the request of the Holder, appropriate notation may be made on this Warrant and
the same returned to the Holder.
(b) Means of Exercise. Upon exercise of this Warrant, the Holder shall pay the
Company an amount equal to the product of (x) the Exercise Price
multiplied by (y) the total
number of Warrant Shares purchased pursuant to this Warrant, by wire transfer or cashier’s check
payable to the order of the Company. The Holder shall be deemed to have become the
holder of record of, and shall be treated for all purposes as the record holder of, the
Warrant Shares represented thereby (and such Warrant Shares shall be deemed to have been issued)
immediately prior to the close of business on the date upon which this Warrant is exercised.
(c) Stock Certificates. In the event of the exercise of this Warrant, certificates
for the Warrant Shares so purchased shall be delivered to the Holder within a reasonable time
after exercise.
2. Stock Fully Paid; Reservation of Shares. All of the Warrant Shares issuable upon the exercise
this Warrant will, upon issuance and receipt of the Exercise Price therefor, be fully paid and
nonassessable, and free from all preemptive rights, rights of first refusal or first offer, taxes,
liens and charges with respect to the issuance thereof. During the period within which the rights
represented by this Warrant may be exercised, the Company shall at all times have authorized and
reserved for issuance a sufficient number of shares of its Common Stock to provide for the exercise
of this Warrant.
3. Adjustment of Exercise Price and Number of Shares. The number and kind of Warrant Shares
purchasable upon the exercise of this Warrant and the Exercise Price payable therefor shall be
subject to adjustment from time to time upon the occurrence of certain events, as follows:
(a) Reclassification, Consolidation or Reorganization. In case of any
reclassification of the Common Stock (other than a change in par value, or as a result of a
subdivision or combination), or in case of any consolidation or merger of the Company with or
into another corporation (other than a Change of Control, as defined below) (any of which is a
“Reorganization Transaction”), the Company, or such successor corporation as the case may be,
shall execute a new warrant, providing that the Holder shall have the right to exercise such new
warrant, and procure upon such exercise and payment of the same aggregate Exercise Price, in
lieu of the Warrant Shares theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property as would be payable for the
Warrant Shares issuable upon exercise of this Warrant as if such Warrant Shares were outstanding
immediately prior to the consummation of the Reorganization Transaction. For purposes of this
Warrant, the term “Change of Control” shall mean (i) any acquisition of the Company by means of
merger, acquisition, or other form of corporate reorganization in which outstanding shares of
the Company are exchanged for securities or other consideration issued, or caused to be issued,
by the acquiring corporation or its subsidiary or parent (other than a reincorporation
transaction or change of domicile) and pursuant to which the holders of the outstanding voting
securities of the Company immediately prior to such consolidation, merger or other transaction
fail to hold equity securities representing a majority of the voting power of the Company or
surviving entity immediately following such consolidation, merger or other transaction
(excluding voting securities of the acquiring corporation held by such holders prior to such
transaction) or (ii) a sale of all or substantially all of the assets of the Company.
(b) Stock Splits, Dividends and Combinations. In the event that the Company shall
at any time subdivide the outstanding shares of Common Stock, or shall issue a stock dividend on
its outstanding shares of Common Stock, the number of Warrant Shares issuable upon
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exercise of this Warrant immediately prior to such subdivision or to the issuance of such
stock dividend shall be proportionately increased, and the Exercise Price shall be
proportionately decreased, and in the event that the Company shall at any time combine the
outstanding shares of Common Stock, the number of Warrant Shares issuable upon exercise of this
Warrant immediately prior to such combination shall be proportionately decreased, and the
Exercise Price shall be proportionately increased, effective at the close of business on the
date of such subdivision, stock dividend or combination, as the case may be.
(c) Notice of Corporate Action. If at any time:
(i) the Company shall take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend (other than a cash dividend payable
out of earnings or earned surplus legally available for the payment of dividends
under the laws of the jurisdiction of incorporation of the Company) or other
distribution, or any right to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or property,
or to receive any other right, or
(ii) there shall be any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any consolidation or
merger of the Company with, or any sale, transfer or other disposition of all or
substantially all the property, assets or business of the Company to, another
corporation, or
(iii) there shall be a voluntary or involuntary dissolution, liquidation or winding
up of the Company;
then, in any one or more of such cases, the Company shall give to the Holder (i) at least
five-days’ prior written notice of the date on which a record date shall be selected for
such dividend, distribution or right or for determining rights to vote in respect of any
such reorganization, reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up, and (ii) in the case of any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition, dissolution,
liquidation or winding up, at least five-days’ prior written notice of the date when the
same shall take place. Such notice in accordance with the foregoing clause also shall
specify (i) the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, the date on which the holders of Common Stock shall be
entitled to any such dividend, distribution or right, and the amount and character thereof,
and (ii) the date on which any such reorganization, reclassification, merger, consolidation,
sale, transfer, disposition, dissolution, liquidation or winding up is to take place and the
time, if any such time is to be fixed, as of which the holders of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or other property
deliverable upon such reorganization, reclassification, merger, consolidation, sale,
transfer, disposition, dissolution, liquidation or winding up. Each such written notice
shall be sufficiently given if addressed to the Holder at the last address of the Holder
appearing on the books of the Company and delivered in accordance with Section 10(d).
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4. Transfer of Warrant and Resale of Warrant Shares.
(a) This Warrant may only be transferred in compliance with federal and state securities
laws; provided, however, that the Company may withhold its consent to transfer
or assignment of this Warrant to any person or entity who is deemed to be a competitor or
prospective competitor of the Company, such determination to be made in the reasonable judgment
of the Board of Directors of the Company.
(b) At the time of the surrender of this Warrant in connection with any transfer of this
Warrant or the resale of the Warrant Shares, the Company may require, as a condition of allowing
such transfer (i) that the Holder or transferee of this Warrant or the Warrant Shares as the
case may be, furnish to the Company a written opinion of counsel that is reasonably acceptable
to the Company to the effect that such transfer may be made without registration under the
Securities Act of 1933, as amended (the “Securities Act”) or qualification under any state
securities laws, (ii) that the Holder or transferee execute and deliver to the Company an
investment representation letter in form and substance acceptable to the Company and
substantially in the form of Exhibit B hereto and (iii) that the transferee be an
“accredited investor” as defined in Rule 501(a) promulgated under the Securities Act. Transfer
of this Warrant and all rights hereunder, in whole or in part, in accordance with the foregoing
provisions, shall be registered on the books of the Company to be maintained for such purpose,
upon surrender of this Warrant at the principal office of the Company or the office or agency
designated by the Company, together with a written assignment of this Warrant substantially in
the form of Exhibit C hereto duly executed by the Holder or its attorney-in-fact and
funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees and in the denomination specified in such
instrument of assignment, and shall issue to the Holder a new warrant evidencing the portion of
this Warrant not so assigned, and this Warrant shall be deemed cancelled. This Section 4 shall
survive the exercise or expiration of the Warrant.
5. Conditions to Exercise of Warrant.
(a) Each certificate evidencing the Warrant Shares issued upon exercise of this Warrant
shall be stamped or imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED
OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Removal of Legend and Transfer Restrictions. Any legend endorsed on a certificate
pursuant to this Section 5 shall be removed, and the Company shall issue a certificate without
such legend to the holder of such Warrant Shares if (i) such Warrant
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Shares are resold pursuant to a registration statement under the Securities Act and a
prospectus meeting the requirements of Section 11 of the Securities Act is delivered or deemed
delivered to the purchaser of such Warrant Shares, (ii) if such holder satisfies the
requirements of Rule 144(k) under the Securities Act or (iii) if such holder provides the
Company with an opinion of counsel for such holder of the Warrant Shares, reasonably
satisfactory to the Company, to the effect that a sale, transfer or assignment of such Warrant
Shares may be made without registration and that upon such sale, transfer or assignment such
Warrant Shares will not be deemed “restricted securities,” as such term is defined in Rule 144
under the Securities Act.
6. Fractional Shares. No fractional Warrant Shares will be issued in connection with any exercise
of this 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.
7. Rights of Stockholders. The Holder shall not be entitled to vote or receive dividends or be
deemed the holder of Warrant Shares or any other securities of the Company which may at any time be
issuable on the exercise of this Warrant for any purpose, nor shall anything contained herein be
construed to confer upon the Holder any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action (whether upon any recapitalization,
issuance of stock, reclassification of stock, change of par value, consolidation, merger,
conveyance, or otherwise) or to receive dividends or subscription rights or otherwise with respect
to the Warrant Shares until this Warrant shall have been exercised and the Warrant Shares
purchasable upon the exercise of this Warrant shall have become deliverable, as provided in this
Warrant.
8. Registration Rights.
(a) Piggy-back Rights. If (but without any obligation to do so) the Company
proposes to register any shares of Common Stock solely for cash pursuant to a registration
statement under the Securities Act, other than a registration solely for the sale of securities
to participants in a Company stock or other incentive plan or in connection with a transaction
under Rule 145 promulgated under the Securities Act (a “Public Offering”), the Company shall
promptly give the Holder written notice of such Public Offering, at least 10 business days prior
to the filing of the registration statement under the Securities Act regarding such Public
Offering. Upon the written request of the Holder given within 5 business days after delivery of
such written notice by the Company, the Company shall, subject to the provisions of this Section
8, use commercially reasonable efforts to cause to be registered for resale under the Securities
Act all of the Warrant Shares that the Holder has requested to be registered on such
registration statement, provided, that the Company shall have no obligation to register
such shares if applicable rules, regulations or other requirements of the Securities and
Exchange Commission prohibit the Company from including such Warrant Shares on such registration
statement on the form thereof used by the Company or require that the registration statement be
for (or meet all of the requirements of) a primary offering if such registration statement
pertains to a secondary offering.
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(b) Underwriting. If the registration statement under which the Company gives
notice under this Section 8 is for an underwritten Public Offering, the Company shall so advise
the Holder. The right of the Holder to registration pursuant to Section 8(a) above shall be
conditioned upon the Holder’s participation in such underwriting and the inclusion of the
Warrant Shares in the underwriting to the extent provided herein. The Holder shall (together
with the Company and any other holders of Company securities distributing their securities
through such underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for underwriting by the Company. Notwithstanding any other
provision of this Section 8, if the underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the underwriter may exclude some or all
of the Warrant Shares from such registration and underwriting.
(c) Furnish Information. It shall be a condition to the Company’s obligations to
take any action under this Section 8 that the Holder shall promptly furnish to the Company such
information regarding itself, the Warrant Shares, and the intended method of disposition of such
Warrant Shares as shall be required to effect the registration of any Warrant Shares. In that
connection, the Holder shall be required to represent to the Company that all such information
which is given is both complete and accurate in all material respects when made.
(d) Delay of Registration. The Holder shall have no right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or implementation of this
Section 8.
(e) Termination of Registration Rights. The Company shall have no obligation to
register Warrant Shares pursuant to this Section 8 with respect to any request or requests made
by any Holder on or after that date which is one year after the date such Warrant Shares were
deemed to be acquired for purposes of determining the holding period of such Warrant Shares
under Rule 144 of the Securities Act.
9. (a) Term of Warrant. This Warrant shall become exercisable on the Warrant Date and shall no
longer be exercisable as of the earlier of (i) 5:00 p.m., San Diego, California local time, on the
date that is the five-year anniversary of the Warrant Date; (ii) immediately prior to the
consummation of a Change of Control and (iii) 5:00 p.m., San Diego, California local time, on the
Call Termination Date (as defined below).
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(b) Notwithstanding Section 9(a), the Company may, by at least 10-days’ prior written
notice to the Holder (the “Termination Notice”) which Termination Notice shall state the date
this Warrant shall terminate (the “Call Termination Date”), shall terminate this Warrant, at any
time, provided that the average Market Price over a 10-consecutive-trading-day period is
equal to or greater than the product of (x) 2 multiplied by (y) the Exercise Price,
provided, however, that the Company may not deliver a Termination Notice unless
a registration statement registering the Warrant Shares has been declared effective and is
effective from the date of delivery of the Termination Notice until the date this Warrant shall
terminate as set forth in the Termination Notice. Nothing in this Section 9 shall prevent the
exercise of the Warrants at any time prior to the termination of this Warrant. For purposes of
this Section 9(b) the term “Market Price” means (i) the closing price of a share of Common Stock
on the principal stock exchange or market (including the Nasdaq National Market, AMEX, OTCCBB
and NYSE) on which shares of Common Stock are then listed or admitted to trading, or quoted, as
applicable (the “Listing Market”), or (ii) if no sale takes place on such day on the Listing
Market, the last reported closing price on the Listing Market.
10. Miscellaneous.
(a) This Warrant is being delivered in the State of California and shall be construed and
enforced in accordance with and governed by the laws of the State of California, without giving
effect to principles of conflicts of laws.
(b) The headings in this Warrant are for purposes of reference only, and shall not limit or
otherwise affect any of the terms hereof.
(c) The terms of this Warrant shall be binding upon and shall inure to the benefit of any
successors or assigns of the Company and of the Holder and of the Warrant Shares issued or
issuable upon the exercise hereof.
(d) Any notice provided for or permitted under this Warrant shall be treated as having been
given (i) upon receipt, when delivered personally, (ii) one day after sending, when sent by
commercial overnight courier with written verification of receipt, (iii) upon confirmed
transmission when sent via facsimile on a business day prior to 5:00 pm (Pacific time) or, if
sent after 5:00 pm (Pacific time), the next business day after confirmed transmission or (iv)
three business days after deposit with the United States Postal Service, when mailed postage
prepaid by certified or registered mail, return receipt requested, addressed, if to the Company,
at 0000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000, (f) (000) 000-0000, Attention:
President, or, if to the Holder, at such address or facsimile number as the Holder shall have
furnished to the Company in writing, or at such other place of which the other party has been
notified in accordance with the provisions of this Section 10(d).
(e) This Warrant constitutes the full and entire understanding and agreement between the
parties with regard to the subjects hereof.
(f) Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of any such loss, theft or
destruction, upon delivery of an indemnity agreement reasonably satisfactory in form and
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amount to the Company or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company at the Holder’s expense will execute and deliver to
the holder of record, in lieu thereof, a new Warrant of like date and tenor.
(g) This Warrant and any provision hereof may be amended, waived or terminated only by an
instrument in writing signed by the Company and the Holder.
(h) Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to
the foregoing terms and conditions.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly authorized
officer, all as of the day and year first above written.
| ADVENTRX Pharmaceuticals, Inc., a Delaware corporation formerly known as Biokeys Pharmaceuticals, Inc. |
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| By: | /s/ Xxxx X. Xxxxxx
|
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| President & CEO | ||||||
Signature Page to Warrant to Purchase Common Stock
Exhibit A
Notice of Exercise
TO:
|
ADVENTRX Pharmaceuticals, Inc. | |
| 0000 Xxxx Xxxxx Xxxx, Xxxxx 000 | ||
| Xxx Xxxxx, XX 00000 |
The undersigned hereby elects to purchase ______shares of Common Stock, par value
$0.001 per share (“Common Stock”), of ADVENTRX Pharmaceuticals, Inc., a Delaware corporation
formerly known as Biokeys Pharmaceuticals, Inc. (the “Company”) pursuant to the terms of Section
1(b) of the Warrant to Purchase Common Stock dated April 12, 2002, (the “Warrant”), and tenders
herewith payment of the Exercise Price (as such term is defined in the Warrant) therefor.
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: | ||||||
The undersigned hereby represents and warrants that the aforesaid shares of Common Stock are
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.
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Date: | ||||||
ExhibitB
Form Of Investment Representation Letter
In connection with the acquisition of [warrants (the “Warrants”) to purchase
shares of Common Stock of ADVENTRX Pharmaceuticals, Inc. (the “Company”), par value $0.001
per share (the “Common
Stock”)][ shares of Common Stock of ADVENTRX
Pharmaceuticals, Inc. (the “Company”), par value $0.001 per share (the “Common
Stock”)], by (the “Holder”) from , the Holder hereby
represents and warrants to the Company as follows:
The Holder (i) is an “Accredited Investor” as that term is defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933, as amended (the “Act”); and (ii) has the
ability to bear the economic risks of such Holder’s prospective investment, including a complete
loss of Holder’s investment in the Warrants and the shares of Common Stock issuable upon the
exercise thereof (collectively, the “Securities”).
The Holder, by acceptance of the Warrants, represents and warrants to the Company that the Warrants
and all securities acquired upon any and all exercises of the Warrants are purchased for the
Holder’s own account, and not with view to distribution of either the Warrants or any securities
purchasable upon exercise thereof in violation of applicable securities laws.
The Holder acknowledges that (i) the Securities have not been registered under the Act, (ii) the
Securities are “restricted securities” and the certificate(s) representing the Securities shall
bear the following legend, or a similar legend to the same effect, until (i) in the case of the
shares of Common Stock underlying the Warrants, such shares shall have been registered for resale
by the Holder under the Act and effectively been disposed of in accordance with a registration
statement that has been declared effective; or (ii) in the opinion of counsel for the Company such
Securities may be sold without registration under the Act:
“[NEITHER] THE SECURITIES REPRESENTED BY THIS CERTIFICATE [NOR THE SECURITIES INTO WHICH THEY ARE
EXERCISABLE] HAVE [NOT] BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
AND ALL SUCH SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THIS
CERTIFICATE. [NEITHER] THE SECURITIES REPRESENTED HEREBY [NOR THE SECURITIES INTO WHICH THEY ARE
EXERCISABLE] MAY [NOT] BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO
COUNSEL FOR THE COMPANY, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER, OR DISPOSITION MAY BE
EFFECTUATED WITHOUT REGISTRATION UNDER THE ACT.”
IN WITNESS WHEREOF, the Holder has caused this Investment Representation Letter to be executed in
its corporate name by its duly authorized officer this ___day of 200_.
[Name]
By: |
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Name:
|
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Title: |
Exhibit C
Assignment Form
FOR VALUE RECEIVED, the undersigned owner of this Warrant for the purchase of shares of Common
Stock of ADVENTRX Pharmaceuticals, Inc., a Delaware corporation formerly known as Biokeys
Pharmaceuticals, Inc. (the “Company”) hereby sells, assigns and transfers unto the assignee named
below all of the rights of the undersigned under this Warrant, with respect to the number of shares
of Common Stock set forth below:
and does hereby irrevocably constitute and appoint attorney-in-fact to register such
transfer on the books of the Company, maintained for the purpose, with full power of substitution
in the premises.
Dated: |
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NOTICE: The signature on this assignment must correspond with the name as written upon the face of
the Warrant in every particular, without alteration or enlargement or any change whatsoever.
