EXHIBIT 10.12
Void after ________________, on ________________
Warrant to Purchase ________________ Shares of Common Stock or such
additional shares as this Warrant may entitle the holder
to purchase pursuant to provisions of this Warrant.
WARRANT TO PURCHASE COMMON STOCK
OF
RECOMBINANT BIOCATALYSIS, INC.
This is to Certify That, FOR VALUE RECEIVED, ________________ or assigns
("Holder"), is entitled to purchase, subject to the provisions of this Warrant,
from Recombinant BioCatalysis, Inc., a Delaware corporation (the "Company"),
________________ fully paid, validly issued and nonassessable shares of Common
Stock, par value $_____ per share, of the Company ("Common Stock") at a price of
________________ per share at any time or from time to time during the period
from ________________, but not later than ________________. The number of shares
of Common Stock to be received upon the exercise of this Warrant and the price
to be paid for each share of Common Stock may be adjusted from time to time as
hereinafter set forth. The shares of Common Stock deliverable upon such
exercise, and as adjusted from time to time, are hereinafter sometimes referred
to as "Warrant Shares" and the exercise price of a share of Common Stock in
effect at any time and as adjusted from time to time is hereinafter sometimes
referred to as the "Exercise Price". This Warrant is being issued in connection
with the issuance by the Company of Warrants to purchase up to ________________
shares of Common Stock and promissory notes in the aggregate principal amount of
up to ________________ (the "Notes"), pursuant to a loan agreement dated as of
________________ (the "Agreement").
(a) EXERCISE OF WARRANT.
(1) This Warrant may be exercised in whole or in part at any time
or from time to time on or after ________________ and until
________________ (the "Exercise Period"); provided, however, that if
either such day is a day on which banking institutions in the
________________ are authorized by law to close, then on the next
succeeding day which shall not be such a day. This Warrant may be
exercised by presentation and surrender hereof to the Company at its
principal office, or at the office of its stock transfer agent, if
any, with the Purchase Form annexed hereto duly executed and
accompanied by payment of the Exercise Price for the number of Warrant
Shares specified in such form. As soon as practicable after each such
exercise of the warrants, but not later than seven (7) days from the
date of such exercise, the Company shall issue and deliver to the
Holder a certificate or certificates for the Warrant Shares issuable
upon such exercise, registered in the name of the Holder or its
designee. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the rights of the Holder
thereof to purchase the balance of the Warrant Shares purchasable
thereunder. Upon receipt by the Company of this Warrant at its office,
or by the
1.
stock transfer agent of the Company at its office, in proper
form for exercise, the Holder shall be deemed to be the holder of
record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall
then be closed or that certificates representing such shares of Common
Stock shall not then be physically delivered to the Holder.
(2) At any time during the Exercise Period, the Holder may, at
its option, exchange this Warrant, in whole or in part (a "Warrant
Exchange"), into the number of Warrant Shares determined in accordance
with this Section (a)(2), by surrendering this Warrant at the
principal office of the Company or at the office of its stock transfer
agent, accompanied by a notice stating such Xxxxxx's intent to effect
such exchange, the number of Warrant Shares to be exchanged and the
date on which the Holder requests that such Warrant Exchange occur
(the "Notice of Exchange"). The Warrant Exchange shall take place on
the date specified in the Notice of Exchange or, if later, the date
the Notice of Exchange is received by the Company (the "Exchange
Date"). Certificates for the shares issuable upon such Warrant
Exchange and, if applicable, a new warrant of like tenor evidencing
the balance of the shares remaining subject to this Warrant, shall be
issued as of the Exchange Date and delivered to the Holder within
seven (7) days following the Exchange Date. In connection with any
Warrant Exchange, this Warrant shall represent the right to subscribe
for and acquire the number of Warrant Shares (rounded to the next
highest integer) equal to (i) the number of Warrant Shares specified
by the Holder in its Notice of Exchange (the "Total Number") less (ii)
the number of Warrant Shares equal to the quotient obtained by
dividing (A) the product of the Total Number and the existing Exercise
Price by (B) the Fair Market Value. "Fair Market Value" shall mean:
(1) if the Common Stock is listed on a National Securities Exchange or
admitted to unlisted trading privileges on such exchange or listed for
trading on the NASDAQ system, the Fair Market Value shall be the
average of the last reported sale prices of the Common Stock on such
exchange or system for the twenty (20) business days ending on the
last business day prior to the date for which the determination is
being made; or (2) if the Common Stock is not so listed or admitted to
unlisted trading privileges, the Fair Market Value shall be the
average of the means of the last reported bid and asked prices
reported by the National Quotation Bureau, Inc. for the twenty (20)
business days ending on the last business day prior to the date for
which the determination is being made; or (3) if the Common Stock is
not so listed or admitted to unlisted trading privileges and bid and
asked prices are not so reported, the Fair Market Value shall be an
amount, not less than book value thereof as at the end of the most
recent fiscal year of the Company ending prior to the Exchange Date,
determined in such reasonable manner as may be prescribed by the Board
of Directors of the Company.
(b) RESERVATION OF SHARES. The Company shall at all times reserve for
issuance and/or delivery upon exercise of this Warrant such number of shares of
its Common Stock as shall be required for issuance and delivery upon exercise of
the Warrants.
2.
(c) FRACTIONAL SHARES. No fractional shares or script representing
fractional shares shall be issued upon the exercise of this Warrant. With
respect to any fraction of a share called for upon any exercise hereof, the
Company shall pay to the Holder an amount in cash equal to such fraction
multiplied by the Fair Market Value of a share.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. (i) This
Warrant is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company or at the office of its stock
transfer agent, if any, for other warrants of different denominations entitling
the holder thereof to purchase in the aggregate the same number of shares of
Common Stock purchasable hereunder. Subject to the restrictions set forth in
subparagraph (ii) below, upon surrender of this Warrant to the Company at its
principal office or at the office of its stock transfer agent, if any, with the
Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be cancelled. This Warrant may be divided or
combined with other warrants which carry the same rights upon presentation
hereof at the principal office of the Company or at the office of its stock
transfer agent, if any, together with a written notice specifying the names and
denominations in which new Warrants are to be issued and signed by the Holder
hereof. The term "Warrant" as used herein includes any Warrants into which this
Warrant may be divided or exchanged. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Warrant, if mutilated, the Company will execute and deliver a new Warrant of
like tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the Company,
whether or not this Warrant so lost, stolen, destroyed, or mutilated shall be at
any time enforceable by anyone.
(ii) This Warrant and the shares of Common Stock issuable upon
exercise hereof have not been registered under the Securities Act of 1933, as
amended, or state securities laws by reason of an exemption therefrom. This
Warrant and the shares of Common Stock issuable upon exercise of this Warrant
are not transferable except as provided in the Agreement and the Stockholders'
Agreement dated as of December 21, 1994, as amended from time to time
("Stockholders' Agreement"). Shares of Common Stock issuable upon exercise of
this Warrant will bear an appropriate legend to this effect. The restrictions
contained herein shall be binding on any transferee of this Warrant and the
Company may require any such transferee to execute an instrument agreeing in
writing to be bound by these restrictions as a condition to transfer.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or equity,
and the rights of the Holder are limited to those expressed in the Warrant and
are not enforceable against the Company except to the extent set forth herein.
(f) ANTI-DILUTION PROVISIONS. The Exercise Price in effect at any
time and the number and kind of securities purchasable upon the exercise of the
Warrants shall be subject to adjustment from time to time upon the happening of
certain events as follows:
3.
(1) In case the Company shall (i) declare a dividend or make a
distribution on its outstanding shares of Common Stock in shares of
Common Stock, (ii) subdivide or reclassify its outstanding shares of
Common Stock into a greater number of shares, or (iii) combine or
reclassify its outstanding shares of Common Stock into a smaller
number of shares, the Exercise Price in effect at the time of the
record date for such dividend or distribution or of the effective date
of such subdivision, combination or reclassification shall be adjusted
so that it shall equal the price determined by multiplying the
Exercise Price by a fraction, the denominator of which shall be the
number of shares of Common Stock outstanding after giving effect to
such action, and the numerator of which shall be the number of shares
of Common Stock outstanding immediately prior to such action. Such
adjustment shall be made successively whenever any event listed above
shall occur.
(2) In case the Company shall fix a record date for the issuance
of rights or warrants to all holders of its Common Stock entitling
them to subscribe for or purchase shares of Common Stock (or
securities convertible into Common Stock) at a price (the
"Subscription Price") (or having a conversion price per share) less
than the Exercise Price on the record date mentioned below, the
Exercise Price shall be adjusted so that the same shall equal the
price determined by multiplying the Exercise Price in effect
immediately prior to the date of issuance by a fraction, the numerator
of which shall be the sum of the number of shares outstanding on the
record date mentioned below and the number of additional shares of
Common Stock which the aggregate offering price of the total number of
shares of Common Stock so offered (or the aggregate conversion price
of the convertible securities so offered) would purchase at the
Exercise Price in effect immediately prior to the date of such
issuance, and the denominator of which shall be the sum of the number
of shares of Common Stock outstanding on the record date mentioned
below and the number of additional shares of Common Stock offered for
subscription or purchase (or into which the convertible securities so
offered are convertible). Such adjustment shall be made successively
whenever such rights or warrants are issued and shall become effective
immediately after the record date for the determination of
shareholders entitled to receive such rights or warrants; and to the
extent that shares of Common Stock are not delivered (or securities
convertible into Common Stock are not delivered) after the expiration
of such rights or warrants the Exercise Price shall be readjusted to
the Exercise Price which would then be in effect had the adjustments
made upon the issuance of such rights or warrants been made upon the
basis of delivery of only the number of shares of Common Stock (or
securities convertible into Common Stock) actually delivered.
(3) In case the Company shall hereafter distribute to the holders
of its Common Stock evidences of its indebtedness or assets (excluding
cash dividends or distributions and dividends or distributions
referred to in Subsection (1) above) or subscription rights or
warrants (excluding those referred to in Subsection (2) above), then
in each such case the Exercise Price in effect thereafter shall be
determined by multiplying the Exercise Price in effect immediately
prior thereto
4.
by a fraction, the numerator of which shall be the total number of
shares of Common Stock outstanding multiplied by the Fair Market Value
per share of Common Stock, less the fair market value (as determined
by the Company's Board of Directors) of said assets or evidences of
indebtedness so distributed or of such rights or warrants, and the
denominator of which shall be the total number of shares of Common
Stock outstanding multiplied by the Fair Market Value per share of
Common Stock. Such adjustment shall be made successively whenever such
a record date is fixed. Such adjustment shall be made whenever any
such distribution is made and shall become effective immediately after
the record date for the determination of shareholders entitled to
receive such distribution.
(4) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to Subsections (1), (2) or (3) above, the
number of Shares purchasable upon exercise of this Warrant shall
simultaneously be adjusted by multiplying the number of Shares
initially issuable upon exercise of this Warrant by the Exercise Price
in effect on the date hereof and dividing the product so obtained by
the Exercise Price, as adjusted.
(5) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at least 5%
in such price; provided, however, that any adjustments which by reason
of this Subsection (5) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment required
to be made hereunder. All calculations under this Section (f) shall be
made to the nearest cent or to the nearest one-hundredth of a share,
as the case may be. Anything in this Section (f) to the contrary
notwithstanding, the Company shall be entitled, but shall not be
required, to make such changes in the Exercise Price, in addition to
those required by this Section (f), as it shall determine, in its sole
discretion, to be advisable in order that any dividend or distribution
in shares of Common Stock, or any subdivision, reclassification or
combination of Common Stock, hereafter made by the Company shall not
result in any Federal Income tax liability to the holders of Common
Stock or securities convertible into Common Stock (including
Warrants).
(6) Whenever the Exercise Price is adjusted, as herein provided,
the Company shall promptly but no later than 10 days after any request
for such an adjustment by the Holder, cause a notice setting forth the
adjusted Exercise Price and adjusted number of Shares issuable upon
exercise of each Warrant, and, if requested, information describing
the transactions giving rise to such adjustments, to be mailed to the
Holders at their last addresses appearing in the Warrant Register, and
shall cause a certified copy thereof to be mailed to its transfer
agent, if any. The Company may retain a firm of independent certified
public accountants selected by the Board of Directors (who may be the
regular accountants employed by the Company) to make any computation
required by this Section (f), and a certificate signed by such firm
shall be conclusive evidence of the correctness of such adjustment.
5.
(7) In the event that at any time, as a result of an adjustment
made pursuant to Subsection (1) above, the Holder of this Warrant
thereafter shall become entitled to receive any shares of the Company,
other than Common Stock, thereafter the number of such other shares so
receivable upon exercise of this Warrant shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common
Stock contained in Subsections (1) to (6), inclusive above.
(8) Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon exercise of this Warrant,
Warrants theretofore or thereafter issued may continue to express the
same price and number and kind of shares as are stated in the similar
Warrants initially issuable pursuant to the Agreement.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise Price shall be
adjusted as required by the provisions of the foregoing Section, the Company
shall forthwith file in the custody of its Secretary or an Assistant Secretary
at its principal office and with its stock transfer agent, if any, an officer's
certificate showing the adjusted Exercise Price determined as herein provided,
setting forth in reasonable detail the facts requiring such adjustment,
including a statement of the number of additional shares of Common Stock, if
any, and such other facts as shall be necessary to show the reason for and the
manner of computing such adjustment. Each such officer's certificate shall be
made available at all reasonable times for inspection by the holder or any
holder of a Warrant executed and delivered pursuant to Section (a) and the
Company shall, forthwith after each such adjustment, mail a copy by certified
mail of such certificate to the Holder or any such holder.
(h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (i) if the Company shall pay any dividend or make any distribution
upon the Common Stock or (ii) if the Company shall offer to the holders of
Common Stock for subscription or purchase by them any share of any class or any
other rights or (iii) if any capital reorganization of the Company,
reclassification of the capital stock of the Company, consolidation or merger of
the Company with or into another corporation, sale, lease or transfer of all or
substantially all of the property and assets of the Company to another
corporation, or voluntary or involuntary dissolution, liquidation or winding up
of the Company shall be effected, then in any such case, the Company shall cause
to be mailed by certified mail to the Holder, at least fifteen days prior the
date specified in (x) or (y) below, as the case may be, a notice containing a
brief description of the proposed action and stating the date on which (x) a
record is to be taken for the purpose of such dividend, distribution or rights,
or (y) such reclassification, reorganization, consolidation, merger, conveyance,
lease, dissolution, liquidation or winding up is to take place and the date, if
any is to be fixed, as of which the holders of Common Stock or other securities
shall receive cash or other property deliverable upon such reclassification,
reorganization, consolidation, merger, conveyance, dissolution, liquidation or
winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company, or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the
6.
continuing corporation and which does not result in any reclassification,
capital reorganization or other change of outstanding shares of Common Stock of
the class issuable upon exercise of this Warrant) or in case of any sale, lease
or conveyance to another corporation of the property of the Company as an
entirety, the Company shall, as a condition precedent to such transaction, cause
effective provisions to be made so that the Holder shall have the right
thereafter by exercising this Warrant at any time prior to the expiration of the
Warrant, to purchase the kind and amount of shares of stock and other securities
and property receivable upon such reclassification, capital reorganization and
other change, consolidation, merger, sale or conveyance by a holder of the
number of shares of Common Stock which might have been purchased upon exercise
of this Warrant immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Any such provision shall include
provision for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Warrant. The foregoing
provisions of this Section (i) shall similarly apply to successive
reclassifications, capital reorganizations and changes of shares of Common Stock
and to successive consolidations, mergers, sales or conveyances. In the event
that in connection with any such capital reorganization or reclassification,
consolidation, merger, sale or conveyance, additional shares of Common Stock
shall be issued in exchange, conversion, substitution or payment, in whole or in
part, for a security of the Company other than Common Stock, any such issue
shall be treated as an issue of Common Stock covered by the provisions of
Subsection (1) of Section (F) hereof.
(j) REGISTRATION UNDER THE SECURITIES ACT OF 1933. Pursuant to the
Stockholders' Agreement, the Warrant Shares are deemed to be Registrable
Securities for purposes of Section 6 of the Stockholders' Agreement which grants
certain registration rights to Holders (as defined in the Stockholders'
Agreement) of Registrable Securities.
RECOMBINANT BIOCATALYSIS, INC.
By:_______________________________
[SEAL]
Dated: ________________
Attest:
_______________________________
Secretary
7.
PURCHASE FORM
Dated ____________, 19___
The undersigned hereby irrevocably elects to exercise the within Warrant to
the extent of purchasing _________ shares of Common Stock and hereby makes
payment of _____________ in payment of the actual exercise price thereof.
____________
INSTRUCTIONS FOR REGISTRATION OF STOCK
--------------------------------------
Name______________________________________
(Please typewrite or print in block letters)
Address____________________________________
Signature__________________________________
____________
ASSIGNMENT FORM
FOR VALUE RECEIVED, ________________________ hereby sells, assigns and
transfers unto
Name_______________________________________
(Please typewrite or print in block letters)
Address______________________
the right to purchase Common Stock represented by this Warrant to the extent of
________ shares as to which such right is exercisable and does hereby
irrevocably constitute and appoint _____________ Attorney, to transfer the same
on the books of the Company with full power of substitution in the premises.
Date_____________, 19___
Signature______________________
1.
Schedule of Warrant Holders
(Common Stock)
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Registered Owner Number of Shares Date Issued
-----------------------------------------------------------------------------
Xxxxxx Trust 7,645 January 12, 1996
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Healthcare Ventures III, L.P. 167,089 January 12, 1996
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Everest Trust 44,100 January 12, 1996
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Xxx Xxxxx 703 January 12, 1996
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Healthcare Ventures IV, L.P. 49,057 January 12, 1996
-----------------------------------------------------------------------------
Axiom Venture Partners, L.P. 30,000 January 12, 1996
-----------------------------------------------------------------------------
Xxxxxx Trust 1,911 February 22, 1996
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Healthcare Ventures IV, L.P. 12,264 February 22, 1996
-----------------------------------------------------------------------------
Healthcare Ventures III, L.P. 41,772 February 22, 1996
-----------------------------------------------------------------------------
Everest Trust 11,025 February 22, 1996
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Xxx Xxxxx 176 February 22, 1996
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Axiom Venture Partners, L.P. 7,500 February 22, 1996
-----------------------------------------------------------------------------
Xxxxxx Trust 1,911 April 4, 1996
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Healthcare Ventures IV, L.P. 12,264 April 4, 1996
-----------------------------------------------------------------------------
Healthcare Ventures III L.P. 41,772 April 4, 1996
-----------------------------------------------------------------------------
Everest Trust 11,025 April 4, 1996
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Xxx Xxxxx 176 April 4, 1996
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Axiom Venture Partners, L.P. 7,500 April 4, 1996
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