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Exhibit 4.15
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SECURITIES
MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXCEPTION THEREFROM UNDER SAID ACT. COPIES OF THE AGREEMENT COVERING THE
PURCHASE OF THESE SECURITIES AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT
NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL EXECUTIVE OFFICE.
Issued: September 20, 1995 CSW-13
RIBOGENE, INC.
COMMON STOCK PURCHASE WARRANT
1. NUMBER AND PRICE OF SHARES SUBJECT TO WARRANT.
(a) Subject to the terms and conditions herein set forth, SBC WARBURG
INC. (the "Purchaser") is entitled to purchase from RiboGene, Inc., a California
corporation (the "Company"), at any time after the date hereof and on or before
(i) the date three (3) years from the date of this Warrant, or (ii) the closing
of the Company's sale of all or substantially all of its assets or the
acquisition of the Company by another entity by means of merger or other
transaction as a result of which shareholders of the Company immediately prior
to such acquisition possess a minority of the voting power of the acquiring
entity immediately following such acquisition, or (iii) the closing of the
initial public offering of the Company's Common Stock registered under the
Securities Act of 1933, as amended, with a public offering price of at least
$5.00 per share of Common Stock (as adjusted for stock splits, combinations and
the like), up to 51,100 shares (which number of shares is subject to adjustment
as described below) of fully paid and non-assessable Common Stock of the Company
upon surrender hereof at the principal office of the Company and, at the
election of the holder hereof, upon either (1) payment of the purchase price at
said office in cash, by check or by wire transfer, (2) the cancellation of any
present or future indebtedness from the Company to the holder hereof in a dollar
amount equal to the purchase price of the Common Stock for which the
consideration is being given, or (3) tender of a notice as provided in the net
issue exercise provisions of Section 6(b) hereof
(b) Subject to adjustment as hereinafter provided, the purchase price
of one share of Common Stock (or such securities as may be substituted for one
share of Common Stock pursuant to the provisions hereinafter set forth) shall be
$2.00. The purchase price of one share of Common Stock (or such securities as
may be substituted for one share of Common Stock pursuant to the provisions
hereinafter set forth) payable from time to time upon the exercise of this
Warrant (whether such price be the price specified above or an adjusted price
determined as hereinafter provided) is referred to herein as the "WARRANT
PRICE."
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2. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number and kind
of securities issuable upon the exercise of this Warrant shall be subject to
adjustment from time to time upon the happening of certain events as follows:
(a) ADJUSTMENT FOR DIVIDENDS IN STOCK OR OTHER SECURITIES OR PROPERTY.
In case at any time or from time to time on or after the date hereof the holders
of the Common Stock of the Company (or any shares of stock or other securities
at the time receivable upon the exercise of this Warrant) shall have received,
or, on or after the record date fixed for the determination of eligible
stockholders, shall have become entitled to receive, without payment therefor,
other or additional stock or other securities or property (other than cash) of
the Company by way of dividend, then and in each case, the holder of this
Warrant shall, upon the exercise hereof, be entitled to receive, in addition to
the number of shares of Common Stock receivable thereupon, and without payment
of any additional consideration therefor, the amount of such other or additional
stock or other securities or property (other than cash) of the Company which
such holder would hold on the date of such exercise had it been the holder of
record of such Common Stock on the date hereof and had thereafter, during the
period from the date hereof to and including the date of such exercise, retained
such shares and/or all other additional stock available by it as aforesaid
during such period, giving effect to all adjustments called for during such
period elsewhere in this Section 2.
(b) ADJUSTMENT FOR RECLASSIFICATION, REORGANIZATION OR MERGER. In case
of any reclassification or change of the outstanding securities of the Company
or of any reorganization of the Company (or any other corporation the stock or
securities of which are at the time receivable upon the exercise of this
Warrant) or any similar corporate reorganization on or after the date hereof,
then and in each such case the holder of this Warrant, upon the exercise hereof
at any time after the consummation of such reclassification, change,
reorganization, merger or conveyance, shall be entitled to receive, in lieu of
the stock or other securities and property receivable upon the exercise hereof
prior to such consummation, the stock or other securities or property to which
such holder would have been entitled upon such consummation if such holder had
exercised this Warrant immediately prior thereto, all subject to further
adjustment as provided elsewhere in this Section 2; and in each such case, the
terms of this Section 2 shall be applicable to the shares of stock or other
securities properly receivable upon the exercise of this Warrant after such
consummation.
(c) STOCK SPLITS AND REVERSE STOCK SPLITS. If at any time on or after
the date hereof the Company shall subdivide its outstanding shares of Common
Stock into a greater number of shares, the Warrant Price in effect immediately
prior to such subdivision shall thereby be proportionately reduced and the
number of shares receivable upon exercise of the Warrant shall thereby be
proportionately increased; and, conversely, if at any time on or after the date
hereof the outstanding number of shares of Common Stock shall be combined into a
smaller number of shares, the Warrant Price in effect immediately prior to such
combination shall thereby be proportionately increased and the number of shares
receivable upon exercise of this Warrant shall thereby be proportionately
decreased.
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(d) ADJUSTMENT FOR QUALIFIED FINANCING. In the event that (a) the
Company consummates a transaction or series of related transactions pursuant to
which the Company sells equity securities with an aggregate purchase price of
not less than $8,000,000 (which shall include purchase price paid via the
conversion of outstanding indebtedness) (A "QUALIFIED FINANCING"), (b) the
purchase price for each share or other unit of the securities sold in the
Qualified Financing is less than $2.00 (as adjusted for subsequent stock splits,
stock dividends and recapitalizations, the "FINANCING PRICE"), and (c) the
Warrant Price then in effect is greater than the Financing Price, then the
Warrant Price shall be adjusted such that it equals the Financing Price. Upon
adjustment of the Warrant Price pursuant to this Section 2(d), the number of
shares issuable upon exercise hereof shall be adjusted such that the aggregate
purchase price for all of such shares, as adjusted, equals the initial aggregate
purchase price for the shares originally purchasable hereunder.
3. NO FRACTIONAL SHARES. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder. In lieu of any fractional
shares which would otherwise be issuable, the Company any shall pay cash equal
to the product of such fraction multiplied by the fair market value of one share
of Common Stock on the date of exercise, as determined in good faith by the
Company's Board of Directors.
4. NO STOCKHOLDER RIGHTS. This Warrant represents only the right to
purchase shares of Common Stock of the Company and shall not otherwise entitle
its holder to any of the rights of a stockholder of the Company.
5. RESERVATION OF STOCK. The Company covenants that during the period this
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant. The Company agrees that its
issuance of this Warrant shall constitute full authority to its officers who are
charged with the duty of executing stock certificates to execute and issue the
necessary certificates for shares of Common Stock upon the exercise of this
Warrant.
6. EXERCISE OF WARRANT.
(a) METHOD OF EXERCISE. This Warrant may be exercised by the holder
hereof, in whole or in part and from time to time, by the surrender of this
Warrant at the principal office of the Company, accompanied by payment to the
Company, by check, of an amount equal to the then applicable Warrant Price per
share multiplied by the number of shares of Common Stock then being purchased.
This Warrant shall be deemed to have been exercised immediately prior to the
close of business on the date of its surrender for exercise as provided above,
and the person entitled to receive the shares of Common Stock issuable upon such
exercise shall be treated for all purposes as the holder of such shares of
record as of the close of business on such date. As promptly as practicable on
or after such date and in any event within five (5) business days thereafter,
the Company at its expense shall issue and deliver to the person or persons
entitled to receive the same a certificate or certificates for the number of
full shares of Common Stock issuable upon such exercise, together with cash in
lieu of any fraction of a share as provided
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above, and, unless this Warrant has been fully exercised or has expired, a new
Warrant representing the portion of the shares of Common Stock, if any, with
respect to which this Warrant shall not have been exercised, shall also be
issued to the holder hereof. The shares of Common Stock issuable upon exercise
hereof shall, upon their issuance, be fully paid and nonassessable.
(b) NET ISSUE EXERCISE.
(i) In lieu of exercising this Warrant in the manner provided above in
Section 6(a), holder may elect to receive shares equal to the value of this
Warrant (or the portion thereof being cancelled) by surrender of this Warrant at
the principal office of the Company together with notice of such election in
which event the Company shall issue to holder a number of shares of the
Company's Common Stock computed using 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
holder.
Y = The number of shares of Common Stock purchasable under
this Warrant (at the date of such calculation).
A = The fair market value of one share of the Company's Common
Stock (at the date of such calculation).
B = The Warrant Price (as adjusted to the date of such
calculation).
(ii) For purposes of this Section 6(b), fair market value of the
Company's Common Stock shall mean the average of the closing bid and asked
prices of the Company's Common Stock quoted in the Over-The-Counter Market
Summary or the closing price quoted on any exchange on which the Common Stock is
listed, whichever is applicable, as published in the Western Edition of The Wall
Street Journal for the ten (10) trading days prior to the date of determination
of fair market value. If the Common Stock is not traded Over-The-counter or on
an exchange, the fair market value shall be the price per share which the
Company could obtain from a willing buyer for the shares sold by the Company
from authorized but unissued shares, as such price shall be agreed by the
Company and the holder.
7. CERTIFICATE OF ADJUSTMENT. Whenever the Warrant Price or number or type
of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company setting forth the nature of
such adjustment and a brief statement of the facts requiring such adjustment.
8. TRANSFER OF WARRANT. This Warrant may not be transferred by the
Purchaser without the written consent of the Company, which consent will not be
unreasonably withheld.
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9. REPLACEMENT OF WARRANTS. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
10. MISCELLANEOUS. This Warrant shall be governed by the laws of the
State of California. The headings in this Warrant are for purposes of
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing signed by
the Company and the registered holder hereof. All notices and other
communications from the Company to the holder of this Warrant shall be mailed by
first class registered or certified mail, postage prepaid, to the address
furnished to the Company in writing by the last holder of this Warrant who shall
have furnished an address to the Company in writing. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provisions.
11. TERMINATION. This Warrant (and the right to purchase securities upon
exercise hereof) shall terminate upon the earliest of (a) the date three (3)
years from the date of this Warrant, or (b) the closing of the Company's sale of
all or substantially all of its assets or the acquisition of the Company by
another entity by means of merger or other transaction as a result of which
shareholders of the Company immediately prior to such acquisition possess a
minority of the voting power of the acquiring entity immediately following such
acquisition, or (c) the closing of the initial public offering of the Company's
Common Stock registered under the Securities Act of 1933, as amended with a
public offering price of at least $5.00 per share of Common Stock (as adjusted
for stock splits, combinations and the like).
12. NOTICE. The Company shall give Purchaser written notice of any sale,
merger, consolidation or public offering referred to in Section II or any cash
dividend declared on the Company's Common Stock at least twenty (20) days prior
to the closing of any such sale, merger, consolidation or public offering or the
record date fixed for the determination of stockholders eligible for such
dividend and shall deliver a copy of the preliminary prospectus with respect to
any such public offering to Purchaser promptly after it becomes available.
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This Common Stock Purchase Warrant No. CSW-13 is issued as of the ______
day of ____________________.
RIBOGENE, INC.
By: [SIG]
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Title:
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