NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT MAY BE TRANSFERRED EXCEPT IN A TRANSACTION REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR WHICH IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THAT ACT. THE TRANSFER OF THIS WARRANT IS RESTRICTED AS
DESCRIBED HEREIN.
NO. W-001
WARRANT TO PURCHASE 2,000 SHARES OF
COMMON STOCK OF
IXION BIOTECHNOLOGY, INC.
This certifies that the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇") of ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇.
, or his registered assigns, (the "Warrant Holder") is entitled to purchase
from Ixion Biotechnology, (the "Company"), a Delaware corporation, at any time
after 9:00 a.m. Gainesville, Florida time, on the Expiration Date (as defined
below), up to an aggregate of 2,000 shares of Common Stock (as defined below)
at the Exercise Price (as defined below). The Exercise Price and the number
of shares of Common Stock which may be purchased from time to time upon the
exercise of this Warrant are subject to adjustment as provided in Article III.
ARTICLE I
Definitions
Section 1.01. As used in this Warrant, the following terms shall have the
following respective meanings:
(a) "Business Day" means a day other than a Saturday, Sunday, or other day
on which banks in the State of Florida are authorized by law to remain closed.
(b) "Common Stock" means the common stock, $0.01 par value per share, of
the Company, and any other capital stock of the Company into which such common
stock may be converted or reclassified or that may be issued in respect of, in
exchange for, or in substitution of, such common stock by reason of any stock
splits, stock dividends, distributions, mergers, consolidations or other like
events.
(c) "Exercise Price" means $2.00 per share of Common Stock, provided,
however, that the Exercise Price may be adjusted from time to time as provided
in Article III.
(d) "Expiration Date" means August 31, 2000.
(e) "Form of Assignment" means the form set forth at the foot of this
Warrant.
(f) "Subscription Form" means the form set forth in Exhibit A hereto.
(g) "Warrant" means this Warrant and all warrants of like tenor (together
evidencing the right to purchase a total of 2,000 shares of Common Stock,
subject to adjustment as provided in Article III), originally issued to ▇▇▇▇
or its designees pursuant to a License Agreement, relating to space and
services at the Biotechnology Development Institute, dated June 26, 1995
between the Company and ▇▇▇▇.
(h) "Warrant Register" means a register to be maintained by the Company at
its principal executive offices in which the Company shall provide for the
registration of the Warrants and of transfers or exchanges of the Warrants as
herein provided.
Section 1.02. Certain other terms are defined elsewhere in this Warrant:
Term Defined in Section
"Change of Shares" Section 3.01(a)
"Commission" Section 6.01(a)
"Common Stock Distribution" Section 3.01(b)
"Company" Preamble
"Convertible Securities" Section 3.01(c)
"Options" Section 3.01(c)
"Securities Act" Section 5.01
"Time of Determination" Section 3.01(f)
"Warrant Holder" Preamble
ARTICLE II
Duration and Exercise of Warrant
Section 2.01. This Warrant may be exercised at any time after 9:00 a.m.,
Gainesville, Florida time, on July 1, 1995, and before 5:00 p.m., Gainesville,
Florida time, on the Expiration Date. If this Warrant is not exercised at or
before 5:00 p.m., Gainesville, Florida time, on the Expiration Date, it will
become void and neither the Warrant Holder nor any other person will have any
rights under this Warrant.
Section 2.02. (a) To exercise this Warrant in whole or in part, the
Warrant Holder must surrender this Warrant, with the Subscription Form duly
executed, to the Company at its principal office accompanied by a certified or
official bank check payable to the order of the Company in an amount equal to
the aggregate Exercise Price for the shares of Common Stock as to which this
Warrant is being exercised.
(b) When the Company receives this Warrant with the Subscription Form duly
executed and accompanied by payment of the aggregate Exercise Price for the
shares of Common Stock as to which this Warrant is being exercised, the
Company will promptly issue certificates, registered in the name of the
Warrant Holder or such other names as are designated by the Warrant Holder,
representing the total number of shares of Common Stock (and other securities,
if any) as to which this Warrant is being exercised, in such denominations as
are requested by the Warrant Holder, and the Company will deliver promptly
such certificates to the Warrant Holder.
(c) If the Warrant Holder exercises this Warrant with respect to fewer
than all the shares of Common Stock to which it relates, the Company will
execute a new Warrant for the balance of the shares of Common Stock that may
be purchased upon exercise of this Warrant and will deliver promptly such new
Warrant to the Warrant Holder.
(d) The Company will pay any taxes that may be payable in respect of (i)
the issuance of shares of Common Stock or (ii) the issuance of a new Warrant
if this Warrant is exercised as to fewer than all the shares of Common Stock
to which it relates. The Company will not, however, be required to pay any
transfer tax payable because shares of Common Stock or a new Warrant are to be
registered in a name other than that of the Warrant Holder, and the Company
will not be required to issue any shares of Common Stock or to issue a new
Warrant registered in a name other than that of the Warrant Holder until (i)
the Company receives either (A) evidence that any applicable transfer taxes
have been paid or (B) funds with which to pay those taxes or (ii) it has been
established to the Company's satisfaction that no such tax is due.
ARTICLE III
Adjustment of Exercise Price
and Number of Shares of Common Stock
Section 3.01. The Exercise Price and the number of shares of Common Stock
or other securities issuable on exercise of this Warrant are subject to
adjustment as follows:
(a) Changes in Common Stock. In the event the Company shall, at any time
or from time to time after the date hereof, (i) issue any shares of Common
Stock as a stock dividend to the holders of Common Stock, (ii) subdivide or
combine the outstanding shares of Common Stock into a greater or lesser number
of shares or (iii) issue any shares of its capital stock in a
reclassification, or reorganization of the Common Stock (any such issuance,
subdivision, combination, reclassification, or reorganization being herein
called a "Change of Shares"), then (A) in the case of (i) or (ii) above, the
number of shares of Common Stock that may be purchased upon the exercise of
this Warrant shall be adjusted to the number of shares of Common Stock that
the Warrant Holder would have owned or have been entitled to receive after the
happening of such event had this Warrant been exercised immediately prior to
the record date (or, if there is no record date, the effective date) for such
event, and the Exercise Price shall be adjusted to the price (calculated to
the nearest 1,000th of one cent) determined by multiplying the Exercise Price
immediately prior to such event by a fraction the numerator of which shall be
the number of shares of Common Stock purchasable with this Warrant immediately
prior to such event and the denominator of which shall be the number of shares
purchasable with this Warrant after the adjustment referred to above and (B)
in the case of (iii) above, paragraph (l) below shall apply. An adjustment
made pursuant to clause (A) of this paragraph shall become effective
retroactively immediately after the record date in the case of a dividend and
shall become effective immediately after the effective date in other cases.
Any shares of Common Stock purchasable solely as a result of such adjustment
shall not be issued prior to the effective date of such event.
(b) Common Stock Distribution. In the event the Company shall, at any
time or from time to time after the date hereof, issue, sell, or otherwise
distribute any shares of Common Stock (other than pursuant to a Change of
Shares or the exercise of any Option, Convertible Security (each as defined in
paragraph (c) and (d) below), or Warrant (any such event including any event
described in paragraphs (c) and (d) below), being herein called a "Common
Stock Distribution") for a consideration per share less than the current
market price per share of Common Stock (as defined in paragraph (f) below) on
the date of such Common Stock Distribution, then, effective upon such Common
Stock Distribution, the Exercise Price shall be reduced to the price
(calculated to the nearest 1,000th of one cent) determined by multiplying the
Exercise Price in effect immediately prior to such Common Stock Distribution
by a fraction, the numerator of which shall be the sum of (i) the number of
shares of Common Stock outstanding (exclusive of any treasury shares)
immediately prior to such Common Stock Distribution multiplied by the current
market price per share of Common Stock on the date of such Common Stock
Distribution, plus (ii) the consideration, if any, received by the Company
upon such Common Stock Distribution, and the denominator of which shall be the
product of (A) the total number of shares of Common Stock outstanding
(exclusive of any treasury shares) immediately after such Common Stock
Distribution multiplied by (B) the current market price per share of Common
Stock on the date of such Common Stock Distribution.
If any Common Stock Distribution shall require an adjustment of the Exercise
Price pursuant to the foregoing provisions of this paragraph (b), including by
operation of paragraph (c) or (d) below, then, effective at the time such
adjustment is made, the number of shares of Common Stock purchasable upon the
exercise of this Warrant shall be increased to a number determined by
multiplying the number of such shares so purchasable immediately prior to such
Common Stock Distribution by a fraction, the numerator of which shall be the
Exercise Price in effect immediately prior to such adjustment and the
denominator of which shall be the Exercise Price in effect immediately after
such adjustment. In computing adjustments under this paragraph, fractional
interests in Common Stock shall be taken into account to the nearest 1,000th
of a share.
The provisions of this paragraph (b), including by operation of paragraph (c)
or (d) below, shall not operate to increase the Exercise Price or reduce the
number of shares of Common Stock purchasable upon the exercise of this
Warrant.
(c) Issuance of Options. In the event the Company shall, at any time or
from time to time after the date hereof, issue, sell, distribute, or otherwise
grant in any manner (including by assumption) any rights to subscribe for or
to purchase, or any warrants or options for the purchase of, Common Stock or
any stock or securities convertible into or exchangeable for Common Stock (any
such rights, warrants, or options being herein called "Options" and any such
convertible or exchangeable stock or securities being herein called
"Convertible Securities"), other than pursuant to its 1994 Stock Option Plan
and its 1994 Board Retainer Plan, whether or not such Options or the rights to
convert or exchange such Convertible Securities are immediately exercisable,
and the price per share at which Common Stock is issuable upon the exercise of
such Options or upon the conversion or exchange of such Convertible Securities
(determined by dividing (i) the aggregate amount, if any, received or
receivable by the Company as consideration for the issuance, sale,
distribution, or granting of such Options, plus the minimum aggregate amount
of additional consideration, if any, payable to the Company upon the exercise
of all such Options, plus, in the cases of Options to acquire Convertible
Securities, the minimum aggregate amount of additional consideration, if any,
payable upon the conversion or exchange of all such Convertible Securities, by
(ii) the total maximum number of shares of Common Stock issuable upon the
exercise of all such Options or upon the conversion or exchange of all such
Options or upon the conversion or exchange of all Convertible Securities
issuable upon the exercise of all such Options) shall be less than the current
market price per share of Common Stock on the date of the issuance, sale,
distribution, or granting of such Options then, for purposes of paragraph (b)
above, the total maximum number of shares of Common Stock issuable upon the
exercise of all such Options or upon the conversion or exchange of the total
maximum amount of the Convertible Securities issuable upon the exercise of all
such Options) shall be less than the current market price per share of Common
Stock on the date of the issuance, sale, distribution, or granting of such
Options shall be deemed to have been issued as on the date of the issuance,
sale, distribution, or granting of such Options and thereafter shall be deemed
to be outstanding and the Company shall be deemed to have received as
consideration such price per share, determined as provided above, therefor.
Except as otherwise provided in paragraphs (j) and (k) below, no additional
adjustment of the Exercise Price shall be made upon the actual exercise of
such Options or upon conversion or exchange of the Convertible Securities
issuable upon the exercise of such Options.
(d) Issuance of Convertible Securities. In the event the Company shall,
at any time or from time to time after the date hereof, issue, sell, or
otherwise distribute (including by assumption) any Convertible Securities
(other than upon the exercise of any Option), whether or not the rights to
convert or exchange such Convertible Securities are immediately exercisable,
and the price per share at which Common Stock is issuable upon the conversion
or exchange of such Convertible Securities (determined by dividing (i) the
aggregate amount, if any, received or receivable by the Company as
consideration for the issuance, sale, or distribution of such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the conversion or exchange of all such
Convertible Securities, by (ii) the total maximum number of shares of Common
Stock issuable upon the conversion or exchange of all such Convertible
Securities) shall be less than the current market price per share of Common
Stock on the date of such issuance, sale, or distribution, then, for purposes
of paragraph (b) above, the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities
shall be deemed to have been issued as of the date of the issuance, sale, or
distribution of such Convertible Securities and thereafter shall be deemed to
be outstanding and the Company shall be deemed to have received as
consideration such price per share, determined as provided above, therefor.
Except as otherwise provided in paragraphs (j) and (k) below, no additional
adjustment of the Exercise Price shall be made upon the actual conversion or
exchange of such Convertible Securities.
(e) Dividends and Distributions. In the event the Company shall, at any
time or from time to time after the date hereof, distribute to the holders of
Common Stock any dividend or other distribution of cash, evidences of its
indebtedness, other securities, or other properties or assets (in each case
other than (i) dividends payable in Common Stock, Options, or Convertible
Securities and (ii) any cash dividend that, when added to all other cash
dividends paid in the one year prior to the declaration date of such dividend
(excluding any such other dividend included in a previous adjustment of the
Exercise Price pursuant to this paragraph (e)), does not exceed 10% of the
current market price per share of Common Stock on such declaration date), or
any options, warrants, or other rights to subscribe for or purchase any of the
foregoing, then (A) the Exercise Price shall be decreased to a price
determined by multiplying the Exercise Price then in effect by a fraction,
the numerator of which shall be the current market price per share of Common
Stock on the record date for such distribution less the sum of (X) the cash
portion, if any, of such distribution per share of Common Stock outstanding
(exclusive of any treasury shares) on the record date for such distribution
plus (Y) the then fair market value (as determined in good faith by the Board
of Directors of the Company) per share of Common Stock outstanding (exclusive
of any treasury shares) on the record date for such distribution of that
portion, if any, of such distribution consisting of evidences of indebtedness,
other securities, properties, assets, options, warrants, or subscription or
purchase rights, and the denominator of which shall be such current market
price per share of Common Stock and (B) the number of shares of Common Stock
purchasable upon the exercise of this Warrant shall be increased to a number
determined by multiplying the number of shares of Common Stock so purchasable
immediately prior to the record date for such distribution by a fraction, the
numerator of which shall be the Exercise Price in effect immediately prior to
the adjustment required by clause (A) of this sentence and the denominator of
which shall be the Exercise Price in effect immediately after such adjustment.
The adjustments required by this paragraph (e) shall be made retroactive to
the record date for the determination of stockholders entitled to receive such
distribution.
(f) Current Market Price. For the purpose of any computation under
paragraphs (b), (c), (d), and (e) of this Section 3.01, the current market
price per share of Common Stock at any date shall be determined as follows:
until the Company has raised an aggregate of $2,000,000 in sales of its
securities, small business innovation research awards, small business
technology transfer awards, or payments by corporate partners for research
support or co-development (it being understood that at the date of this
Warrant Agreement, the Company has already raised a total of $442,806,
exclusive of deferred salaries), then the current market price per share
(prior to any adjustment resulting from a Common Stock Distribution) shall be
$2.00 per share; thereafter, the current market price per share of the Common
Stock at any date shall be the average of the daily closing prices for the
shorter of (i) the 20 consecutive trading days ending on the last full trading
day on the exchange or market specified in the second succeeding sentence
prior to the Time of Determination and (ii) the period commencing on the date
next succeeding the first public announcement of the issuance, sale,
distribution, or granting in question through such last full trading day prior
to the Time of Determination. The term "Time of Determination" as used herein
shall be the time and date of the earlier to occur of (A) the date as of which
the current market price is to be computed and (B) the last full trading day
on such exchange or market before the commencement of "ex-dividend" trading in
the Common Stock relating to the event giving rise to the adjustment required
by paragraph (b), (c), (d), or (e). The closing price for any day shall be
the last reported sale price regular way or, in case no such reported sale
takes place on such day, the average of the closing bid and asked prices
regular way for such day, in each case (1) on the principal national
securities exchange on which the shares of Common Stock are listed or to which
such shares are admitted to trading or (2) if the Common Stock is not listed
or admitted to trading on a national securities exchange, in the over-the-
counter market as reported by NASDAQ or any comparable system or (3) if the
Common Stock is not listed on NASDAQ or a comparable system, as furnished by
two members of the National Association of Securities Dealers, Inc. selected
from time to time in good faith by the Board of Directors of the Company for
that purpose. In the absence of all of the foregoing or if for any other
reason the current market price per share cannot be determined pursuant to the
foregoing provisions of this paragraph (f), the current market price per
share shall be the fair market value thereof as determined in good faith by
the Board of Directors of the Company.
(g) Certain Distributions. If the Company shall pay a dividend or make
any other distribution payable in Options or Convertible Securities, then, for
purposes of paragraph (b) above (by operation of paragraph (c) or (d) above,
as the as may be), such Options or Convertible Securities shall be deemed to
have been issued or sold without consideration.
(h) Consideration Received. If any shares of Common Stock, Options or
Convertible Securities shall be issued, sold, or distributed for a
consideration other than cash, the amount of the consideration other than cash
received by the Company in respect thereof shall be deemed to be the then fair
market value of such consideration (as determined in good faith by the Board
of Directors of the Company). If any Options shall be issued in connection
with the issuance and sale of other securities of the Company, together
comprising one integral transaction in which no specific consideration is
allocated to such Options by the parties thereto, such Options shall be deemed
to have been issued without consideration, provided, however, that if such
Options have an exercise price equal to or greater than the current market
price of the Common Stock on the date of issuance of such Options, then such
Options shall be deemed to have been issued for consideration equal to such
exercise price.
(i) Deferral of Certain Adjustments. No adjustment to the Exercise Price
(including the related adjustment to the number of shares of Common Stock
purchasable upon the exercise of this Warrant) shall be required hereunder
unless such adjustment, together with other adjustments carried forward as
provided below, would result in an increase or decrease of at least $.10 in
the Exercise Price; provided however, that any adjustments which by reason of
this paragraph (i) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. No adjustment need be made
for a change in the par value of the Common Stock.
(j) Changes in Options and Convertible Securities. If the exercise price
provided for in any Options referred to in paragraph (c) above, the additional
consideration, if any, payable upon the conversion or exchange of any
Convertible Securities referred to in paragraph (c) or (d) above, or the rate
at which any Convertible Securities referred to in paragraph (c) or (d) above
are convertible into or exchangeable for Common Stock shall change at any time
(other than under or by reason of provisions designed to protect against
dilution upon an event which results in a related adjustment pursuant to this
Article III), the Exercise Price then in effect and the number of shares of
Common Stock purchasable upon the exercise of this Warrant shall forthwith be
readjusted (effective only with respect to any exercise of this Warrant after
such readjustment) to the Exercise Price and number of shares of Common Stock
so purchasable that would then be in effect had the adjustment made upon the
issuance, sale, distribution, or granting of such Options or Convertible
Securities been made based upon such changed purchase price, additional
consideration, or conversion rate, as the case may be, but only with respect
to such Options and Convertible Securities as then remain outstanding.
(k) Expiration of Options and Convertible Securities. If, at any time
after any adjustment to the number of shares of Common Stock purchasable upon
the exercise of this Warrant shall have been made pursuant to paragraph (c),
(d), or (j) above or this paragraph (k), any Options or Convertible Securities
shall have expired unexercised, the number of such shares so purchasable
shall, upon such expiration, be readjusted and shall thereafter be such as
they would have been had they been originally adjusted (or had the original
adjustment not been required, as the case may be) as if (i) the only shares of
Common Stock deemed to have been issued in connection with such options or
Convertible Securities were the shares of Common Stock, if any, actually
issued or sold upon the exercise of such Options or Convertible Securities and
(ii) such shares of Common Stock, if any, were issued or sold for the
consideration actually received by the Company upon such exercise plus the
aggregate consideration, if any, actually received by the Company for the
issuance, sale, distribution, or granting of all such Options of Convertible
Securities, whether or not exercised; provided, however, that no such
readjustment shall have the effect of decreasing the number of such shares so
purchasable by an amount (calculated by adjusting such decrease to account for
all other adjustments made pursuant to this Article III following the date of
the original adjustment referred to above) in excess of the amount of the
adjustment initially made in respect of the issuance, sale, distribution, or
granting of such Options or Convertible Securities.
(l) Other Adjustments. In the event that at any time, as a result of an
adjustment made pursuant to this Article III, the Warrant Holder shall become
entitled to receive any securities of the Company other than shares of Common
Stock, thereafter the number of such other securities so receivable upon
exercise of this Warrant and the Exercise Price applicable to such exercise
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 shares
of Common Stock contained in this Article III.
Section 3.02. Whenever the number of shares of Common Stock or other stock or
property issuable upon the exercise of this Warrant is adjusted, as herein
provided, the Company shall promptly mail to the Warrant Holder notice of such
adjustment or adjustments and shall deliver to the Warrant Holder a
certificate of a principal officer of the Company setting forth the number of
shares of Common Stock or other stock or property issuable upon the exercise
of this Warrant after such adjustment, setting forth a brief statement of the
facts requiring such adjustment, and setting forth the computation by which
such adjustment was made.
Section 3.03. If at any time after this Warrant is first issued
(a) the Company declares a dividend or other distribution on its Common
Stock payable other than in cash out of its undistributed net income; or
(b) the Company authorizes the granting to the holders of its Common Stock
of rights to subscribe for a purchase any shares of any class of its capital
stock or any other securities; or
(c) there is any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding Common Stock), or any
consolidation or merger to which the Company is a party and for which approval
of the holders of the Common Stock is required, or a sale or transfer of all
or substantially all the assets of the Company; or
(d) there is a voluntary or involuntary dissolution, liquidation, or
winding up of the Company;
then, in each case, the Company will mail to the Warrant Holder at least 15
Business Days before the applicable record date a notice stating (i) the
record date for the dividend, distribution, or rights, or, if there will not
be a record date, the date as of which the holders of record of Common Stock
who will be entitled to the dividend, distribution, or rights will be
determined, or (ii) the date on which the reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation, or winding up is expected to
become effective, and the date as of which it is expected the holders of
record of Common Stock who will be entitled to exchange their Common Stock for
securities or other property as a result of the reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation, or winding up
will be determined. Failure to give any notice or any defect in the notice
will not affect the validity of the action which should have been the subject
of the notice.
Section 3.04. The form of this Warrant need not be changed because of any
change in the Warrant Price or in the number of shares of Common Stock which
may be purchased by exercising this Warrant. The Company may, however, at any
time make any change in the form of Warrant this it deems appropriate to
reflect a change in the Exercise Price or in the number of shares of Common
Stock which may be purchased by exercising this Warrant (provided the change
in the form of Warrant does not otherwise affect the substance of the
Warrant), and any Warrant issued after the form of Warrant is so changed shall
be in the changed form.
ARTICLE IV
Other Provisions Relating to Rights of the Warrant Holder
Section 4.01. The Warrant Holder will not, as such, be entitled to vote, to
receive dividends, or to have any other of the rights of a shareholder of the
Company, except that after this Warrant is exercised in accordance with the
terms of this Warrant the persons in whose names the shares of Common Stock
purchased through exercise of this Warrant are to be issued will be deemed to
become the holders of record of those shares of Common Stock for all purposes
even if certificates representing such shares of Common Stock have not been
issued.
Section 4.02.1 (a) The Company will at all times reserve and keep available
for issuance upon exercise of this Warrant the number of authorized and
unissued shares of Common Stock equal to the maximum number of shares of
Common Stock the Company may be required to issue upon exercise of this
warrant at the Exercise Price in effect from time to time.
(b) All shares of Common Stock issued on exercise of this Warrant
will, when they are issued, be validly issued, fully paid, and nonassessable.
Section 4.03. The Company will not be required to issue any fraction of a
share upon exercise of this Warrant. If any fraction of a share of Common
Stock would, except for the provisions of this Section, be issuable on the
exercise of any Warrant (or specified portion thereof), the Company shall pay
an amount in cash calculated by it to equal to the then current market value
per share multiplied by such fraction computed to the nearest whole cent. The
Warrant Holder, by its acceptance of this Warrant, expressly waives any and
all rights to receive any fraction of a share of Common Stock or a stock
certificate representing a fraction of a share of Common Stock.
Section 4.04. The Company will maintain a Warrant Register in which the name
and address of each registered holder of Warrants will be recorded.
Section 4.05. Notices or other communications to the Warrant Holder will
be deemed given by the Company on the third Business Day after the day on
which they are sent by registered mail, return receipt requested, addressed to
the Warrant Holder at the Warrant Holder's last known address shown on the
Warrant Register.
Section 4.06. Prior to due presentment for registration of transfer of
this Warrant, the Company may treat the Warrant Holder as the absolute owner
of this Warrant for all purposes, including for the purpose of determining
the persons entitled to exercise this Warrant, despite any notice to the
contrary.
ARTICLE V
Transfer of Warrants
Section 5.01. This Warrant may be sold, transferred, assigned, or
hypothecated with the written consent of the Company, in whole or in part. At
all times, however, neither this Warrant nor the shares of Common Stock or
other securities issuable upon exercise of this Warrant may be transferred
except in a transaction which is registered under the Securities Act of 1933,
as amended (the "Securities Act"), or which is exempt from the registration
requirements of the Securities Act.
Section 5.02. Upon surrender to the Company at its principal office of
this Warrant with the Form of Assignment (or another instrument of assignment)
duly executed and accompanied by (i) (A) evidence that any transfer tax has
been paid or (B) funds sufficient to pay any transfer tax, or (C) evidence to
the Company's satisfaction that no such tax is due, and (ii) evidence
reasonably satisfactory to the Company that the proposed assignment will not
violate Section 5.01, the Company will, without charge, execute and deliver a
new Warrant registered in the name of the assignee named in the Form of
Assignment (or other instrument of assignment) and will promptly cancel this
Warrant. This Warrant may be divided or combined with other Warrants by
surrender of this Warrant and any other Warrants with which it is to be
combined at the principal office of the Company together with a written
notice, signed by the Warrant Holder, specifying the names and denominations
in which new Warrants are to be issued.
Section 5.03. Upon receipt by the Company of evidence reasonably
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, or (in the case of mutilation) upon surrender of
this Warrant, the Company will execute and deliver a new Warrant relating to
the same number of shares of Common Stock as this Warrant and the lost,
stolen, destroyed, or mutilated Warrant will become void. Any new Warrant
executed and delivered in accordance with this Section 5.03 will constitute an
additional contractual obligation of the Company, and will be valid and
enforceable whether or not the Warrant which was believed to have been lost,
stolen, or destroyed is subsequently presented for exercise.
ARTICLE VI
Registration Under the Securities Act
Section 6.01 (a) If, at any time during the period commencing on July 1, 1995
and ending on June 30, 2001, The Company shall determine or be required to
register any shares of the Company's Common Stock (whether on behalf of itself
or any other person) under the Securities Act of 1933 on Forms ▇-▇, ▇-▇, ▇-▇,
▇▇-▇, or SB-2 (or if such forms are rescinded by the Securities and Exchange
Commission (the "Commission") such forms as replace those forms), excluding
any registration for the offering and sale of securities of the Company to its
employees, it will notify the Warrant Holder in order that it may request that
all or a part of shares of Common Stock issued or issuable upon exercise of
this Warrant be included in the registration statement. If requested by any
Warrant Holder in writing within 20 days after the Company's notice, the
Company will include the requested number of shares in such registration
statement. Any such request shall include the agreement of the Warrant Holder
requesting the registration to execute and deliver the underwriting agreement,
if any, to be executed and delivered in connection with such registration.
The Company may, however, decline to include all or a part of the requested
number of shares in a registration statement pursuant to this section if it is
advised by the investment banking firm managing the underwriting that such
inclusion would adversely affect the offering of the shares to be covered by
the proposed registration statement.
(b) The Company shall use its best efforts to file such post-effective
amendments to any registration statement described in this Section 6 as shall
be necessary to keep it effective until six months after the effective date of
the registration statement or the date on which all of the shares of the
Warrant Holders covered thereunder shall have been sold, whichever is earlier.
(c) As a condition to the Company's obligation under this Article VI to
cause a registration statement or amendment to be filed or shares to be
included in a registration statement, the Warrant Holder shall provide such
information and execute such documents as may reasonably be required in
connection with such registration. In addition, the Company shall not be
required to include such shares in a registration statement if it shall have
received opinions of its and the Warrant Holder's counsel to the effect that
the proposed disposition of such shares may be effected without registration
under the Act.
(d) The expenses of the registration of Warrant Holders' shares (other
than transfer taxes, underwriting commissions, and fees of Warrant Holders'
counsel) shall be paid by the Company.
Section 6.02. Unless the resale of shares of Common Stock is the subject
of an effective registration statement under the Securities Act, the
certificates representing shares of Common Stock issued upon exercise of this
Warrant may bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. THE SHARES MAY NOT BE OFFERED OR SOLD, EXCEPT (i)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR (ii) IN A TRANSACTION WHICH
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THAT ACT."
ARTICLE VII
Other Matters
Section 7.01. The provisions of this Warrant will bind, and inure to the
benefit of, the Company and its successors and assigns and the Warrant Holder
and its successors and assigns.
Section 7.02 (a) Any notice or other communication to the Company relating to
this Warrant will be deemed given on the day when it is delivered or sent by
facsimile transmission (with a confirmation copy sent by registered mail,
return receipt requested), or on the third Business Day after the day on which
it is sent by registered mail, return receipt requested, to the Company at the
following address (or such other address as may be specified by the Company
after the date of this Warrant):
Ixion Biotechnology, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chairman of the Board and Chief
Executive Officer
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
(b) Any notice or other communication to the Warrant Holder will be deemed
given when and as provided in Section 4.05.
Section 7.03. To the extent such documents are required to be sent by the
Company to the holders of its outstanding Common Stock, the Company shall
provide the Warrant Holder, within five Business Days after it files them with
the Commission, copies of its annual report and of the information, documents,
and other reports which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Section 7.04. THIS WARRANT WILL BE GOVERNED BY, AND CONSTRUED UNDER, THE
LAWS OF THE STATE OF FLORIDA RELATING TO CONTRACTS AND INSTRUMENTS EXECUTED
AND TO BE PERFORMED ENTIRELY IN SUCH STATE.
Section 7.05. The Article and Section headings in this Warrant are for
convenience only, are not part of this Warrant and are not intended to affect
the meaning or interpretation of any of the terms of this Warrant.
END OF TEXT - SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, this Warrant has been executed by the Company on the
___________ day of ______________, 1995.
Ixion Biotechnology, Inc.
By ___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman of the Board and
Chief Executive Officer
[Corporate Seal]
Attest:
_________________________
▇▇▇▇ ▇▇▇▇
Secretary
FORM OF ASSIGNMENT
(To Be Signed Only Upon Assignment)
FOR VALUE RECEIVED, the undersigned registered holder of this Warrant hereby
sells, assigns, and transfers unto the Assignee(s) named below (including the
undersigned with respect to any shares of Common Stock subject to this Warrant
not being assigned hereby) all of the rights of the undersigned under this
Warrant, with respect to the number of shares of Common Stock set forth below:
Social Security
or other identifying Number of Shares
Names of Assignee(s) Address number of assignee(s) of
Common Stock
and does hereby irrevocably constitute and appoint
______________________________, the undersigned's attorney, to make such
transfer on the Warrant Register, with full power of substitution in the
premises.
Dated: _______________, _______
______________________________________________
Signature of Owner
(Signature must conform with the name of the Warrant
Holder as specified on the face of the Warrant)
Street Address
City State Zip Code
Exhibit A
SUBSCRIPTION FORM
To: Ixion Biotechnology, Inc. (the "Company")
The undersigned irrevocably elects to purchase ____________ shares of Common
Stock of the Company by exercising the Warrant to which this form is attached
and tenders payment of the full Exercise Price with respect to such shares of
Common Stock. The undersigned requests that the certificates representing the
shares of Common Stock of the Company as to which the Warrant is being
exercised be registered as follows:
Name: ________________________________________________________________________
Social Security or Employer Identification Number:
____________________________________
Address:
______________________________________________________________________
Deliver to:
_____________________________________________________________________
Address:
______________________________________________________________________
______________________________________________________________________
If the number of shares of Common Stock of the Company as to which the Warrant
is being exercised are fewer than all the shares of Common Stock of the
Company to which the Warrant relates, please issue a new Warrant for the
balance of such shares of Common Stock registered in the name of the
undersigned and deliver it to the undersigned at the following address:
Address:
______________________________________________________________________
Date: __________________ Signature
__________________________________
(Signature must conform with the name of the
Warrant Holder as specified on the face of Warrant)
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