Exhibit 10.05
FORM OF WARRANT
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Warrant No.
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THIS WARRANT (AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT) HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE SECURITIES
STATUTE, OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE THEREUNDER AS
EVIDENCED BY AN OPINION OF COUNSEL OR NO-ACTION LETTER FROM THE SECURITIES AND
EXCHANGE COMMISSION, IN EITHER CASE IN FORM AND SUBSTANCE SATISFACTORY TO THE
COMPANY.
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
Expires , 20
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THIS CERTIFIES THAT, for value received, (the "Holder"), is
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entitled to subscribe for and purchase up to shares (the "Shares")
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of the fully paid and nonassessable Common Stock of Point Therapeutics, Inc., a
Delaware corporation (the "Company"), for an exercise price per share determined
pursuant to the terms of Section 4.1 hereof (the "Warrant Price"), subject to
the provisions and upon the terms and conditions hereinafter set forth.
As used herein, the term "Shares" shall mean the Company's presently
authorized Common Stock and the term "Grant Date" shall mean , .
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1. Term. Subject to the provisions of this Warrant, the purchase right
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represented by this Warrant is exercisable, in whole or in part, at any time and
from time to time after the date hereof and prior to the seventh anniversary of
the Grant Date.
2. Method of Exercise.
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2.1. Standard Method. The purchase right represented by this Warrant
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may be exercised by the holder hereof, in whole or in part and from time to
time, by the surrender of this Warrant (with the notice of exercise form
attached hereto as Exhibit A duly executed) at the Principal office of the
Company and by the payment to the Company, by certified or bank check or by wire
transfer, of an amount equal to the then applicable Warrant Price per share
multiplied by the number of Shares then being purchased, The person or persons
in whose name(s) any certificate(s) representing Shares shall be issuable upon
exercise of this Warrant shall be deemed to have become the holder(s) of record
of, and shall be treated for all purposes as the record holder(s) of, the shares
represented thereby (and such shares shall be deemed to have been issued)
immediately prior to the close of business on the date or dates upon which this
Warrant is exercised and the then applicable Warrant Price paid. In the event of
any exercise of the rights
represented by this Warrant, certificates for the shares of stock so purchased
shall be delivered to the holder hereof as soon as possible and in any event
within thirty days of receipt of such notice and payment of the then applicable
Warrant Price and, unless this Warrant has been fully exercised or expired, a
new Warrant representing the portion of the Shares, if any, with respect to
which this Warrant shall not then have been exercised shall also be issued to
the holder hereof as soon as possible and in any event within such thirty-day
period.
2.2. Net Issue Exercise.
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(a) In lieu of exercising this Warrant, holder may elect to
receive shares equal to the value of this Warrant (or the portion thereof being
canceled) 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 to be issued to Holder.
Y = the number of Shares purchasable under this Warrant.
A = the fair market value of one Share.
B = the Warrant Price
(b) For purposes of this Section, fair market value of one share
of the Company's Common Stock shall be the average of the closing per share bid
and asked prices of the Company's Common Stock quoted in the Over-The-Counter
Market Summary or the closing price quoted on Nasdaq or any exchange on which
the Common Stock is listed, whichever is applicable, as published in the Eastern
Edition of The Wall Street Journal for the ten trading days prior to the date of
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determination of fair market value. If the Common Stock is not traded
Over-The-Counter or on Nasdaq or an exchange, the fair market value of the
Company's Common Stock shall be the price per share which the Company could
obtain from a willing buyer for shares sold by the Company from authorized but
unissued shares, as such price shall be agreed by the Company and the Holder,
and if they fail to agree within 15 days after the exercise of this Warrant, as
determined by arbitration. Such arbitration shall be conducted in Boston.
Massachusetts in accordance with the commercial arbitration rules of the
American Arbitration Association and the costs of arbitration shall be shared
equally by the parties. The arbitrator shall be a person selected by the Company
and the holder who shall have experience in valuing companies similar to the
Company. If the Company and the holder are unable to agree on a single
arbitrator, each shall select an arbitrator and the two arbitrators so selected
shall select a third arbitrator. The determination of the arbitrator(s) shall be
binding on the Company and the holder.
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2.3. Automatic Exercise.
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(a) If the Company has publicly traded stock as of the expiration
date of this Warrant, if the fair market value of one share of the Company's
Common Stock (determined in the same manner as is set forth in Section 2.2(b))
is as of the expiration date greater than the Warrant Price, as adjusted, this
Warrant shall be deemed automatically exercised pursuant to Section 2.2 above
(even if not surrendered) immediately prior to its expiration.
(b) If as of April 24, 2005, the Company has no publicly traded
stock, the Company shall notify the holder in writing that this Warrant will
expire on July 24, 2005 and shall endeavor to determine what is the fair market
value of one share of the Company's Common Stock in the manner described in
Section 2.2(b), and if the fair market value of one share of the Company's
Common Stock, as so determined is as of the expiration date greater than the
Warrant Price, as adjusted, this Warrant shall be deemed automatically exercised
pursuant to Section 2.2 above (even if not surrendered) immediately prior to its
expiration. If the Company shall fail to give the notice set forth in this
Section 2.3(b), the expiration date of the Warrant shall be postponed for one
day for each day that the Company shall have failed to give such notice, and
shall be extended until ten days after the determination of the fair market
value of one share of Common Stock if such determination shall be made after the
date on which this Warrant otherwise shall have expired, whether pursuant to
Section 1 above or this Section 2.2(b) as a result of the Company's failure to
give notice.
(c) To the extent this Warrant or any portion thereof is deemed
automatically exercised pursuant to this Section 2.3, the Company agrees to
promptly notify the holder hereof of the number of shares of the Company's
Common Stock, if any, the holder is entitled to receive by reason of such
automatic exercise.
3. Stock Fully Paid Reservation of Shares. The Shares have been duly
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authorized and reserved for issuance by the Company. All Shares that may be
issued upon the exercise of the rights represented by this Warrant, will, upon
issuance, be fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issue thereof. During the period within which the
rights represented by the Warrant may be exercised, the Company will at all
times have authorized and reserved for the purpose of issuance upon exercise of
the purchase rights evidenced by this Warrant, a sufficient number of Shares to
provide for the exercise of the unexercised rights represented by this Warrant.
The Company covenants that it will from time to time take all such action as may
be requisite to assure that in the event the Common Stock shall have a par
value, such par value per share of the Common Stock shall at all times be equal
to or less than the Warrant Price in effect at the time.
4. Initial Warrant Price; Adjustment of Warrant Price and Number of Shares.
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The number and kind of securities purchasable upon the exercise of the Warrant
and the Warrant Price shall be subject to adjustment from time to time upon the
occurrence of certain events, as follows:
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(a) Initial Warrant Price. The initial Warrant Price shall be
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./1/
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4.2. Reclassification or Merger. Subject to Section 1, in case of any
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reclassification, change or, conversion of securities of the class issuable upon
exercise of this Warrant (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any merger of the Company with or into another
corporation (other than a merger with another corporation in which the Company
is a continuing corporation and which does not result in any reclassification or
change of outstanding securities issuable upon exercise of this Warrant), or in
case of any sale of all or substantially all of the assets of the Company, the
Company, or such successor or purchasing corporation, as the case may be, shall
execute a new Warrant (in form and substance, satisfactory to the holder of this
Warrant) providing that the holder of this Warrant shall have the right to
exercise such new Warrant and upon such exercise to receive, in lieu of each
share of Common Stock theretofore issuable upon exercise of this Warrant, the
kind and amount of shares of stock, other securities, money and property
receivable upon such reclassification, change or merger by a holder of one share
of Common Stock. Such new Warrant shall provide for adjustments that shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Paragraph 4. The provisions of this Section 4.2 shall similarly apply to
successive reclassifications, changes, mergers and transfers.
4.3. Subdivisions or Combination of Shares. If the Company at any time
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while this Warrant remains outstanding and unexpired shall subdivide or combine
its Common Stock, the Warrant Price shall be proportionately adjusted.
4.4. Stock Dividends. If the Company at any time while this warrant is
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outstanding and unexpired shall pay a dividend payable in shares of Common Stock
(except any distribution specifically provided for in the foregoing Sections 4.2
and 4.3), then the Warrant Price shall be adjusted, from and after the date of
determination of shareholders entitled to receive such dividend or distribution,
to that price determined by multiplying the Warrant Price in effect immediately
prior to such date of determination by a fraction (a) the numerator of which
shall be the total number of shares of Common Stock outstanding immediately
prior to such dividend or distribution (assuming the conversion, exchange or
exercise of all securities convertible into, exchangeable for or exercisable for
Common Stock), and (b) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution (assuming the conversion, exchange or exercise of all securities
convertible into, exchangeable for or exercisable for Common Stock).
4.5. Dilutive Issuances. If and whenever the Company shall issue or
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sell, or is, in accordance with subparagraphs (a) through (r) below, deemed to
have issued or sold, any shares of Common Stock for a consideration per share
less than the Warrant Price in effect
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/1/ The initial Warrant Price will be determined by dividing the per share
exercise price under each such Point Warrwnt by the Exchange Ratio and rounding
up to the nearest cent. The Exchange Ratio, which will be determined immediately
prior to the closing of the merger, is anticipated to be approximately 4. 19356.
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immediately prior to the time of such issue or sale, then, forthwith upon such
issue or sale, the Warrant Price shall be reduced to the price determined by
dividing (i) an amount equal to the sum of (x) the number of shares of Common
Stock outstanding immediately prior to such issue or sale multiplied by the then
existing Warrant Price and (y) the consideration, if any, received by the
Company upon such issue or sale, by (ii) the total number of shares of Common
Stock outstanding immediately after such issue or sale. For purposes of this
Section 4.5, the following subparagraphs (a) through (h) shall also be
applicable:
(a) Issuance of Rights or Options. In case at any time the
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Company shall in any manner grant (whether directly or by assumption in a merger
or otherwise) any warrants or other rights to subscribe for or to purchase, or
any options for the purchase of, Common Stock or any stock or security directly
or indirectly convertible into or exchangeable for Common Stock (such warrants,
rights or options being called "Options" and such convertible or exchangeable
stock or securities being called "Convertible Securities") whether or not such
Options or the right to convert or exchange any such Convertible Securities are
immediately exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such Options or upon the conversion or exchange of
such Convertible Securities (determined by dividing (x) the total amount, if
any, received or receivable by the Company as consideration for the granting of
such Options, plus the minimum aggregate amount of additional consideration
payable to the Company upon the exercise of all such Options, plus, in the case
of such Options which relate to Convertible Securities, the minimum aggregate
amount of additional consideration, if any, payable upon the issue or sale of
such Convertible Securities and upon the conversion or exchange thereof, by (y)
the total maximum number of shares of Common Stock issuable upon the exercise of
such Options or upon the conversion or exchange of all such Convertible
Securities issuable upon the exercise of such Options) shall be less than the
Warrant Price in effect immediately prior to the time of the granting of such
options, then, in calculating the adjustments to the Warrant Price, the total
maximum number of shares of Common Stock issuable upon the exercise of such
Options or upon conversion or exchange of the total maximum amount of such
Convertible Securities issuable upon the exercise of such Options shall be
deemed to have been issued for such price per share as of the date of granting
of such Options or the issuance of such Convertible Securities and thereafter
shall be deemed to be outstanding. Except as otherwise provided in subparagraph
(c) below, no adjustment of the Warrant Price shall be made upon the actual
issue of such Common Stock or of such Convertible Securities upon exercise of
such options or upon the actual issue of such Common Stock upon conversion or
exchange of such Convertible Securities.
(b) Issuance of Convertible Securities. In case the Company shall
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in any manner issue (whether directly or by assumption in a merger or otherwise)
or sell any Convertible Securities, whether or not the rights to exchange or
convert any such Convertible Securities are immediately exercisable, and the
price per share for which Common Stock is issuable upon such conversion or
exchange (determined by dividing (x) the total amount received or receivable by
the Company as consideration for the issue or sale of such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the conversion or exchange thereof, by (y) 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 Warrant
Price in effect immediately prior to the time of such issue or sale, then, in
calculating the adjustment(s) to the Warrant Price, the total maximum number of
shares
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of Common Stock issuable upon conversion or exchange of all such Convertible
Securities shall be deemed to have been issued for such price per share as of
the date of the issue or sale of such Convertible Securities and thereafter
shall be deemed to be outstanding, provided that (i) except as otherwise
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provided in subparagraph (c), no adjustment of the Warrant Price shall be made
upon the actual issue of such Common Stock upon conversion or exchange of such
Convertible Securities and (ii) if any such issue or sale of such Convertible
Securities is made upon exercise of any Options to purchase any such Convertible
Securities for which adjustments of the Warrant Price have been or are to be
made pursuant to other provisions of this paragraph 4, no further adjustment of
the Warrant Price shall be made by reason of such issue or sale.
(c) Change in Option Price or Conversion Rate. Upon the happening
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of any of the following events, namely, if the purchase price provided for in
any Option referred to in subparagraph (a), the additional consideration, if
any, payable upon the conversion or exchange of any Convertible Securities
referred to in subparagraphs (a) or (b), or the rate at which convertible
Securities referred to in subparagraphs (a) or (b) are convertible into or
exchangeable for Common Stock shall change at any time (including, but not
limited to, changes under or by reason of provisions designed to protect against
dilution), the Warrant Price in effect at the time of such event shall forthwith
be readjusted to the Warrant Price which would have been in effect at such time
had such Options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate, as the case
may be, at the time initially granted, issued or sold; and on the termination of
any such Option or any such right to convert or exchange such Convertible
Securities, the Warrant Price then in effect hereunder shall forthwith be
increased to the Warrant Price which would have been in effect at the time of
such termination had such Option or Convertible Securities, to the extent
outstanding immediately prior to such termination, never been issued.
(d) Stock Dividends. In case the Company shall declare a dividend
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or make any other distribution upon any stock of the Company payable in Common
Stock (except for dividends or distributions upon the Common Stock), Options or
Convertible Securities, any Common Stock, Options or Convertible Securities, as
the case may be, issuable in payment of such dividend or distribution shall be
deemed to have been issued or sold without consideration.
(e) Consideration for Stock. In case any shares of Common Stock,
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Options or Convertible Securities shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Company therefor, after deduction therefrom of any reasonable expenses incurred
or reasonable underwriting commissions or concessions paid or allowed by the
Company in connection therewith. In case any shares of Common Stock, Options or
Convertible Securities shall be issued or sold for a consideration other than
cash, the amount of the consideration other than cash received by the Company
shall be deemed to be the fair value of such consideration as determined in good
faith by the Board of Directors of the Company, without deduction of any
expenses incurred or any underwriting commissions or concessions paid or allowed
by the Company in connection therewith. In case any Options shall be issued in
connection with the issue 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 for such consideration as determined in good faith by the
Board of Directors of the Company.
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(f) Record Date. In case the Company shall take a record of the
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holders of its Common Stock for the purpose of entitling them (i) to receive a
dividend or other distribution payable in Common Stock, Options or Convertible
Securities or (ii) to subscribe for or purchase Common Stock; Options or
Convertible Securities, then such record date shall be deemed to be the date of
the issue or sale of the shares of Common Stock deemed to have been issued or
sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
(g) Treasury Shares. The number of shares of Common Stock
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outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock for the purpose of this Section 4.5.
(h) Minimum Adjustment. If any adjustment of the Warrant Price
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pursuant to this Section 4.5 shall result in an adjustment of less than ten
percent (10%) of the Warrant Price in effect immediately prior to such
adjustment, no such adjustment shall be made, but any such lesser adjustment
shall be carried forward and shall be made at the time and together with the
next subsequent adjustment which, together with any adjustments so carried
forward, shall amount to ten percent (10%) or more of the Warrant Price in
effect immediately prior to such adjustment.
(i) Exceptions. No adjustments of the Warrant Price shall be made
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by reason of or in connection with the issuance of up to an aggregate of
[300,000]/2/ shares of Common Stock (including options to purchase such shares)
pursuant to warrants, stock option agreements, stock option plans, stock
purchase plans or management incentive plans approved by the Board of Directors
or the Compensation Committee to employees, directors, customers, suppliers or
consultants (whether issued on or after July 24, 1998).
(j) Notice of Adjustment. Upon any adjustment of the Warrant
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Price, then and in each such case the Company shall give written notice thereof,
by delivery in person, certified or registered mail, return receipt requested,
telecopier or telex, addressed to the Holder at the address or telecopier number
of such holder as shown on the books of the Company, which notice shall state
the Warrant Price resulting from such adjustment, setting forth in reasonable
detail the method upon which such calculation is based.
(k) Other Notices. In case at any time:
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(i) the Company shall declare any dividend upon its Common
Stock payable in cash or stock or make any other distribution to the holders of
its Common Stock;
(ii) the Company shall offer for subscription pro rata to
the holders of its Common Stock any additional shares of stock of any class or
other rights;
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/2/ To be adjusted to reflect the Exchange Ratio (as defined in Footnote
#1).
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(iii) there shall be any capital reorganization or
reclassification of the capital stock of the Company, or a consolidation or
merger of the Company with or into another entity or entities, or a sale, lease,
abandonment, transfer or other disposition of all or substantially all of the
assets of the Company; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company; then, in any one or more of said
cases, the Company shall give, by delivery in person, certified or registered
mail, return receipt requested, telecopier or telex, addressed to the Holder at
the address or telecopier number of such holder as shown on the books of the
Company, (a) at least 20 days' prior written notice of the date on which the
books of the Company shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in respect
of any such reorganization, reclassification, consolidation, merger,
disposition, dissolution, liquidation or winding up and (b) in the case of any
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding up, at least 20 days' prior written notice
of the date when the same shall take place. Such notice in accordance with the
foregoing clause (a) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto and such notice in accordance with the foregoing
clause (b) shall also specify the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, disposition, dissolution, liquidation or winding up, as the case may be.
(l) Issue Tax. The issuance of certificates for shares of Common
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Stock upon exercise of this Warrant shall be made without charge to the holders
thereof for any issuance tax in respect thereof, provided that the Company shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other than
that of the Holder.
(m) Closing of Books. The Company will at no time close its
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transfer books against the transfer of any shares of Common Stock issued or
issuable upon the exercise of this Warrant in any manner which interferes with
the timely exercise of this Warrant, except as may otherwise be required to
comply with applicable securities laws.
(n) Definition of Common Stock. As used in this Section 4.5, the
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term "Common Stock" shall mean and include the Company's authorized Common
Stock, without par value, as constituted on the date of this Warrant, and shall
also include any capital stock of any class of the Company thereafter authorized
which shall neither be limited to a fixed sum or percentage in respect of the
rights of the holders thereof to participate in dividends nor entitled to a
preference in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Company; provided that the shares
of Common Stock receivable upon exercise of this Warrant shall include only
shares designated as Common Stock of the Company on the date of this Warrant or
in case of any reorganization or reclassification of the outstanding shares
thereof, the stock, securities or assets provided for in Section 4.2.
(o) "Person" Defined. For the purposes of this Section 4.5, the
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term "Person" shall mean an individual, a Company, an association, a limited
liability company, a
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joint-stock company, a business trust or other similar organization, a
partnership, a joint venture, a trust, an unincorporated organization or a
government or any agency, instrumentality or political subdivision thereof.
4.6. No Impairment. The Company will not, by amendment of its Charter
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or through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this
Paragraph 4 and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the holder of this Warrant against
impairment.
5. Notice of Adjustments. Whenever the Warrant Price or number of Shares
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shall be adjusted pursuant to the provisions hereof, the Company shall within 30
days of such adjustment deliver a certificate signed by its chief financial
officer to the registered holder(s) hereof setting forth, in reasonable detail,
the event requiring the adjustment, the amount of the adjustment, the method by
which such adjustment was calculated, and the Warrant Price after giving effect
to such adjustment.
6. Fractional Shares. No fractional Shares will be issued in connection
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with any exercise hereunder, but in lieu of such fractional shares the Company
shall make a cash payment therefor upon the basis of the Warrant Price then in
effect.
7. Compliance with Securities Act; Disposition of Warrant or Shares of
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Common Stock.
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7.1. Compliance with Securities Act. The holder of this Warrant, by
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acceptance hereof, agrees that this Warrant and the Shares to be issued upon
exercise hereof are being acquired for investment and that such holder will not
offer, sell or otherwise dispose of this Warrant or any Shares to be issued upon
exercise hereof except under circumstances which will not result in a violation
of the Securities Act of 1933, as amended (the "Act"). This Warrant and all
Shares issued upon exercise of this Warrant (unless registered under the Act)
shall be stamped or imprinted with a legend in substantially the following form:
THIS WARRANT (AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT) HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE SECURITIES
STATUTE, OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE THEREUNDER AS
EVIDENCED BY AN OPINION OF COUNSEL OR NO-ACTION LETTER FROM THE SECURITIES AND
EXCHANGE COMMISSION, IN EITHER CASE IN FORM AND SUBSTANCE SATISFACTORY TO THE
COMPANY.
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7.2. Disposition of Warrant and Shares. With respect to any offer,
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sale or other disposition of this Warrant, any of the Shares or any of the
shares issuable upon conversion of the Shares and until registration of this
Warrant or such Shares or shares, the holder hereof and each subsequent holder
of the Warrant agrees to give written notice to the Company prior thereto,
describing briefly the manner thereof together with a written opinion of
counsel, if requested by the Company, reasonably acceptable to the Company, to
the effect that such offer, sale or other disposition may be effected without
registration or qualification (under the Act as then in effect or any federal or
state law then in effect) of this Warrant or such Shares or shares and
indicating whether or not under the Act certificates for this Warrant or such
Shares or shares to be sold or otherwise disposed of require any restrictive
legend as to applicable restrictions on transferability in order to insure
compliance with the Act. Each certificate representing this Warrant or the
Shares or such shares thus transferred shall bear a legend as to the applicable
restrictions on transferability in order to insure compliance with the Act,
unless in the aforesaid opinion of counsel for the holder, such legend is not
required in order to insure compliance with the Act. Nothing herein shall
restrict the transfer of this Warrant, the Shares or such shares or any portion
hereof by the initial holder hereof to any entity affiliated with the initial
holder, or to any partner, member or stockholder of any such entity provided
such transfer may be made in compliance with applicable federal and state
securities laws. The Company may issue stop transfer instructions to its
transfer agent in connection with the foregoing restrictions.
8. Rights as Shareholder; Information.
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8.1. Shareholder Rights. No holder of the Warrant, as such, shall be
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entitled to vote or receive dividends or be deemed the holder of Shares or any
other securities of the Company which may at any time be issuable on the
exercise thereof for any purpose, nor shall anything contained herein be
construed to confer upon the holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to receive notice of meetings (except as otherwise provided in Section 4.6 of
this Warrant), or to receive dividends or subscription rights or otherwise until
this Warrant shall have been exercised and the Shares purchasable upon the
exercise hereof shall have become deliverable, as provided herein.
8.2. Financial Statements and Information. The Company shall deliver
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to the registered holder hereof (i) within 120 days after the end of the fiscal
year of the Company, a consolidated balance sheet of the Company as of the end
of such year and a consolidated statement of income, retained earnings and cash
flows for such year, which year-end financial reports shall be in reasonable
detail and certified by independent public accountants of nationally recognized
standing selected by the Company (it being agreed that Ernst & Young is an
acceptable firm of independent public accountants) and (ii) within 30 days after
the end of each month other than the last month of the fiscal year, unaudited
consolidated statements of income, retained earnings and cash flows for such
month and a consolidated balance sheet as of the end of such month. If the
Company has a class of securities registered under the Securities Exchange Act
of 1934, the provisions of this Section 8.2 shall be satisfied by the delivery
to the holder, within 120 days after the end of the Company's fiscal year, of a
report on Form 10-K, or such fiscal year, and with respect to the first three
fiscal quarters in each fiscal year, within 45 days after the end of each such
fiscal quarter, of a report on Form 10-Q for such fiscal quarter. In
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addition, the Company shall deliver to the registered holder hereof any other
information or data provided generally to the shareholders of the Company.
9. Additional Rights.
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9.1. Mergers. The Company will provide the holder of this Warrant with
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at least the greater of (a) 20 days' notice or (b) such greater amount of notice
as Delaware law requires be given to shareholders with power to vote at a
meeting on any transaction described hereinafter of the terms and conditions of
the proposed transaction, if the Company proposes to (i) sell, lease, exchange,
convey or otherwise dispose of all or substantially all of its property or
business, or (ii) merge into or consolidate with any other corporation (other
than a wholly-owned subsidiary of the Company), or effect any transaction
including a merger or other reorganization) or series of related transactions,
in which more than 50% of the voting power of the Company is disposed of.
Subject to the provisions of Section 1 above, in connection with any transaction
described in this Section 9.2 either (a) the sale of this Warrant shall be
arranged in connection with any such transaction on terms satisfactory to the
holder hereof or (b) the holder hereof shall receive in connection with such
transaction either (i) a new Warrant (on the same terms as set forth herein or
otherwise in form and substance satisfactory; to the holder of this Warrant
exercisable for the kind and amount of shares of stock, other securities, money
and property receivable upon such transaction by a holder of Common Stock or
(ii) the remainder of (x) securities, money or other property receivable upon
such transaction by a holder of Common Stock having the same number of shares of
Common Stock as the number issuable on the exercise of this Warrant, minus (y)
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the aggregate Warrant Price for such shares.
10. Representations and Warranties. This Warrant is issued and delivered on
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the basis of the following:
10.1. Authorization and Delivery. This Warrant has been duly
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authorized and executed by the Company and when delivered will be the valid and
binding obligation of the Company enforceable in accordance with its terms.
10.2. Rights and Privileges. The rights, preferences, privileges and
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restrictions granted to or imposed upon the Shares and the holders thereof are
as set forth herein and in the Company's Articles of Organization, true and
complete copies of which have been delivered to the original warrant holder.
10.3. No Inconsistency. The execution and delivery of this Warrant are
----------------
not, and the issuance of the Warrant upon exercise of this Warrant in accordance
with the terms hereof will not be, inconsistent with the Company's Certificate
of Incorporation or by-laws, do not and will not contravene any law,
governmental rule or regulation, judgment or order applicable to the Company,
and do not and will not contravene any provision of, or constitute a default
under, any indenture, mortgage, contract or other instrument of which the
Company is a party or by which it is bound or require the consent or approval
of, the giving of notice to, the registration with or the taking of any action
in respect of or by, any Federal, state or local government authority or agency
or other person.
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11. Modification and Waiver. This Warrant and any provision hereof may be
-----------------------
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
12. Notices. Any notice, request or other document required or permitted to
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be given or delivered to the holder hereof or the Company shall be delivered by
facsimile where confirmation of receipt by the receiving party's receiver can be
documented, or delivered by hand, or shall be sent by reputable overnight
courier, certified or registered mail, postage prepaid, to each such holder at
its address as shown on the books of the Company or to the Company at the
address indicated therefore on the signature page of this Warrant.
13. Binding Effect on Successors. This Warrant shall be binding upon any
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corporation succeeding the Company by merger or consolidation, and all of the
obligations of the Company relating to the Shares issuable upon the exercise of
this Warrant shall be as set forth in the Company's Certificate of Incorporation
and the Company's by-laws (each as amended from time to time) and shall survive
the exercise and termination of this Warrant and all of the covenants and
agreements herein and in such other documents and instruments of the Company
shall inure to the benefit of the successors and assigns of the holder hereof.
The Company will, at the time of the exercise of this Warrant, in whole or in
part, upon request of the holder hereof but at the Company's expense,
acknowledge in writing its continuing obligation to the holder hereof in respect
of any rights to which the holder hereof shall continue to be entitled after
such exercise in accordance with this Warrant; provided, that the failure of the
holder hereof to make any such request shall not affect the continuing
obligation of the Company to the holder hereof in respect of such rights.
14. Lost Warrants or Stock Certificates. The Company covenants to the
-----------------------------------
holder hereof that upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction, or mutilation of this Warrant or any
stock certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonably satisfactory to the Company, or in the case
of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the Company will make and deliver a new Warrant or stock
certificate, or like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant or stock certificate.
15. Descriptive Headings. The descriptive headings of the several
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paragraphs of this warrant are inserted for convenience only and do not
constitute a part of this Warrant.
16. Governing Law. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN
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ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF DELAWARE.
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POINT THERAPEUTICS, INC.
By:
--------------------------------
Title:
Address:
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Date: , 20
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EXHIBIT A
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Notice of Exercise
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To:
1. The undersigned hereby elects to purchase shares of Common
---------
Stock of Point Therapeutics, Inc. pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or, subject to compliance with the restrictions on
transfer set forth in Section 7 of the Warrant, in such other name or names as
are specified below:
---------------------------------
(Name)
---------------------------------
---------------------------------
---------------------------------
(Address)
3. The undersigned represents that the aforesaid shares 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.
---------------------------------
Signature
Date:
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