Exhibit 4.9
THIS WARRANT AND THE SHARES PURCHASABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), BUT RATHER HAVE
BEEN ISSUED PURSUANT TO AN EXEMPTION THEREFROM. THIS WARRANT AND THE SHARES
PURCHASABLE HEREUNDER MAY NOT BE TRANSFERRED OR ASSIGNED EXCEPT AS EXPRESSLY
PERMITTED HEREIN, AND THEN ONLY IN ACCORDANCE WITH A VALID REGISTRATION
STATEMENT OR AN EXEMPTION FROM REGISTRATION UNDER THE PROVISIONS OF THE
SECURITIES ACT.
WARRANT TO PURCHASE SHARES OF SERIES A PREFERRED STOCK
Deltagen, Inc., a Delaware corporation (the "Company"), hereby certifies
that for and in consideration of entering into a Lease Termination Agreement,
dated March 27, 2003, pursuant to which the Company has terminated its lease on
certain real property, AMB PROPERTY, L.P., a Delaware limited partnership (the
"Partnership"), or its assigns, is entitled, subject to the terms set forth
below, to purchase from the Company at any time or from time to time
__________________________ (__________) fully paid and nonassessable shares of
Series A Preferred Stock of the Company, as constituted on [Date of Issuance of
Warrant], at a purchase price of $_____ per share. The number of shares and the
per share purchase price are subject to adjustment as set forth in Article IV.
ARTICLE I
DEFINITIONS
1. Definitions. Except as otherwise provided herein, the capitalized terms
set forth below shall have the following meanings:
1.1 "Company" includes any corporation that shall succeed to or assume the
obligations of the Company hereunder.
1.2 "Common Stock" shall mean the Common Stock, $____ par value per share,
of the Company.
1.3 "Warrant Shares" shall mean the shares of Series A Preferred Stock
issued or issuable upon exercise of this Warrant, and any other securities or
property of the Company or any other person (corporate or otherwise) which the
holder of this Warrant at any time shall be entitled to receive upon the
exercise hereof, in lieu of or in addition to the Series A Preferred Stock, or
which at any time shall be issuable in exchange for or in replacement of the
Series A Preferred Stock.
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ARTICLE II
TERMS AND CONDITIONS
2.1 Exercise. This Warrant shall be exercisable during a period commencing
upon the date hereof and shall expire on March 27, 2013.
This Warrant may be exercised in full or in part by the holder hereof
by surrender of this Warrant, with the form of election to purchase attached
hereto duly executed by the holder, to the Company at its principal office,
accompanied by payment, in cash or by check payable to the order of the Company,
of the purchase price of the Warrant Shares to be purchased hereunder, the
cancellation of indebtedness of the Company to the holder in an amount equal to
such purchase price, or any combination thereof. For any partial exercise of
this Warrant, the holder shall designate in the election to purchase the number
of Warrant Shares that it wishes to purchase. On any such partial exercise, the
Company at its expense shall promptly issue and deliver to the holder hereof a
new warrant of like tenor, in the name of the holder hereof, which shall be
exercisable for such number of Warrant Shares represented by this Warrant which
have not been purchased upon such exercise.
Notwithstanding anything to the contrary herein, this Warrant may not
be exercised by the Partnership to the extent that, as a result of such
exercise, it would result in a violation of the REIT Test (as defined in Section
4.5).
2.2 Delivery of Certificates. The Company at its expense (including
payment by it of any applicable taxes and other governmental charges incurred in
connection with the issuance and delivery of the Warrant Shares) shall cause to
be issued in the name of and delivered to the holder hereof, or as the holder
may direct, a certificate or certificates evidencing the number of fully paid
and nonassessable Warrant Shares to which the holder shall be entitled upon such
exercise, together with cash in lieu of any fractional share, equal to such
fraction of the current market value of one full share as determined in good
faith by the Board of Directors of the Company. Certificates evidencing the
Warrant Shares shall be delivered to the purchaser within a reasonable time (not
exceeding 10 days) after this Warrant shall have been exercised as provided
herein. Upon original issuance of the Warrant Shares, and until such time as the
same shall have been registered under the Securities Act or sold pursuant to
Rule 144 promulgated thereunder (or any similar rule or regulation), the Warrant
Shares shall bear any legend required by the Securities Act.
2.3 Transferability. Subject to the transfer conditions referred to in
the legend endorsed hereon, this Warrant and all rights hereunder are
transferable, in whole or in part, without charge to the holder hereof upon
surrender of this Warrant with a properly executed assignment (substantially in
the form annexed hereto) at the principal office of the Company. Upon any
partial transfer, the Company will at its expense issue and deliver to the
holder hereof a new Warrant of like tenor, in the name of the holder hereof,
which shall be exercisable for such number of Warrant Shares which were not so
transferred.
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2.4 Termination. This Warrant (and the right to purchase securities upon
exercise hereof) shall terminate upon the 10th anniversary of the date of
issuance of this Warrant (the "Expiration Date").
2.5 Replacement of Warrants. Upon receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form to the Company, or, in the case of any such mutilation, on
surrender and cancellation of this Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
ARTICLE III
COMPANY REPRESENTATIONS AND WARRANTIES
3. The Company represents and warrants to the Partnership as follows:
3.1 Due Organization and Authorization. The Company is a corporation duly
organized and validly existing under the laws of the State of Delaware. The
Company has all requisite corporate power and authority to enter into this
Warrant and to consummate the transactions contemplated hereby. The execution
and delivery of this Warrant have been duly authorized by all necessary
corporate action on the part of the Company. This Warrant has been duly executed
and delivered by the Company and is a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
3.2 Reservation of Shares. The Company has taken all necessary corporate
and other action to authorize and reserve for issuance, upon exercise of this
Warrant, a number of shares of Series A Preferred Stock and Common Stock
sufficient to permit this Warrant to be exercised in full and the Company will
take all necessary corporate action to authorize and reserve for issuance all
additional shares of Series A Preferred Stock and Common Stock or other
securities which may become issuable upon exercise of this Warrant pursuant to
the provisions of Article IV hereof. The shares of Series A Preferred Stock to
be issued upon exercise of this Warrant, including all additional shares of
Series A Preferred Stock or other securities that may become issuable pursuant
to Article IV, will be duly and validly issued, fully paid and nonassessable,
and shall be delivered free and clear of all liens, claims, charges and
encumbrances of any kind or nature whatsoever, including any preemptive rights
of any shareholder of the Company.
3.3 Non-Contravention. The execution and delivery of this Warrant are not,
and the issuance of the Warrant Shares in accordance with the terms hereof will
not be, inconsistent with the Company's Articles of Incorporation or bylaws, do
not and will not contravene any law, governmental rule or regulation, judgment
or order applicable to the Company, and, except for consents that have already
been obtained by the Company, do not and will not conflict with or 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,
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the registration with or the taking of any action in respect of or by, any
federal, state or local governmental authority or agency or other person.
ARTICLE IV
ADJUSTMENT TO PURCHASE PRICE AND NUMBER OF SHARES
4.1 Adjustments for Stock Splits, Stock Dividends, Recapitalizations, Etc.
The purchase price of this Warrant and the number of Warrant Shares issuable
upon exercise of this Warrant shall be appropriately adjusted to reflect any
stock dividend, stock split, combination of shares, reclassification,
recapitalization or other similar event affecting the number of outstanding
shares of Series A Preferred Stock (or any shares of stock or other securities
at the time issuable upon exercise of this Warrant). For example, if there
should be a 2-for-1 stock split, the purchase price would be divided by two and
the number of shares would be doubled.
4.2 Adjustments for Other Dividends and Distributions. In the event that
the Company shall make or issue, or shall fix a record date for the
determination of eligible holders entitled to receive, a dividend or other
distribution with respect to the Series A Preferred Stock (or any shares of
stock or other securities at the time issuable upon exercise of this Warrant)
payable in (i) securities of the Company (other than shares of Series A
Preferred Stock or any shares of stock or other securities at the time issuable
upon the exercise of this Warrant) or (ii) assets (excluding cash dividends paid
or payable solely out of retained earnings), then, in each case, the holder of
this Warrant upon exercise hereof at any time after the consummation, effective
date or record date of such event, shall receive, in addition to the Warrant
Shares issuable upon such exercise, the securities or such other assets of the
Company to which such holder would have been entitled on such date as if such
holder had exercised this Warrant immediately prior thereto (all subject to
further adjustment as provided in this Warrant).
4.3 Adjustment for Reorganization, Consolidation, Merger, Etc. In the event
of any consolidation or merger of the Company with or into any other
corporation, entity or person, or other corporate reorganization, in which the
Company shall not be the continuing or surviving entity of such consolidation,
merger, or reorganization, or any transaction in which more than 50% of the
Company's voting power is transferred, or any sale of all or substantially all
of the assets of the Company (any such transaction hereinafter referred to as a
"Reorganization"), then, in each case, the holder of this Warrant, upon exercise
hereof at any time after the consummation or effective date of such
Reorganization, shall receive in lieu of the Warrant Shares issuable upon such
exercise prior to such effective date, the maximum amount of stock, other
securities and/or property (including cash) to which such holder would have been
entitled on such effective date in accordance with the documents governing such
Reorganization and the Company's Restated Articles of Incorporation (if any) as
if such holder had exercised this Warrant immediately prior thereto (all subject
to further adjustment as provided in this Warrant).
The Company shall not effect any such Reorganization unless prior to or
simultaneously with the consummation thereof the successor corporation (if other
than
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the Company) resulting from such Reorganization or the corporation purchasing or
leasing such assets or other appropriate corporation or entity shall expressly
assume, by a supplemental Warrant or other acknowledgment executed and delivered
to the holder, the obligation to deliver to the holder such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to purchase, and all other obligations and liabilities
under this Warrant.
4.4 Certificate as to Adjustment. In the event of any adjustment or
readjustment in the price or kind of securities issuable upon exercise of this
Warrant, the Company shall promptly (and in no event later than 20 days after
such adjustment or readjustment) give written notice thereof to the holder of
this Warrant in the form of a certificate, certified and confirmed by the Board
of Directors of the Company, setting forth such adjustment or readjustment and
showing (in detail reasonably acceptable to the holder of this Warrant) the
facts upon which such adjustment or readjustment is based.
4.5 Limitation to Preserve REIT Status. Notwithstanding anything to the
contrary contained herein, in no event shall the holder of this Warrant be
issued or own capital stock of the Company, or warrants which would entitle it
to acquire, or otherwise be entitled to receive (including as a result of the
exercise of this Warrant), shares of capital stock of the Company or other
assets (including partnership interests and shares of capital stock of other
companies), to the extent that the holder would acquire or own actually or
Constructively in excess of (i) 9.9% of the total number of then outstanding
shares of capital stock of the Company, (ii) 9.9% of the then outstanding
securities of the Company entitled to vote for the election of directors of the
Company, (iii) 9.9% of the total value of all then outstanding shares of capital
stock of the Company, or (iv) a number or value of shares of capital stock of
the Company, or any other assets, the ownership of which could jeopardize the
status of AMB Property Corporation, the general partner of the Partnership (the
"General Partner"), as a Real Estate Investment Trust or the qualification as
"rents from real property" as defined in Section 856(d) of the Internal Revenue
Code of 1986, as amended (the "Code"), of amounts received by any partnership or
limited liability company in which the General Partner directly or indirectly
owns an interest, whichever of the four foregoing tests is the most restrictive
(collectively, the "REIT Test"). For purposes of applying the REIT Test, (i) the
holder shall be treated as simultaneously acquiring all capital stock of the
Company or other assets distributed by the Company as a result of any previous
exercise or exercises by any holder of this Warrant; (ii) any capital stock of
the Company or other assets then actually or Constructively owned by the holder
which were not issued by the Company as a result of an exercise of this Warrant
shall be taken into account; (iii) to the extent the exercising holder is not
the Partnership, the limit described above shall be applied as if it were the
Partnership (if such application would be more restrictive); and (iv)
"Constructively" shall mean constructively through the application of Section
318 of the Code, as modified by Section 856(d)(5) of the Code. The parties
hereto understand that the foregoing definition, among other things, generally
requires the parties to give effect to the issuance of the Warrant Shares but
not to give effect to any other capital stock of the Company issuable to third
parties upon the exercise of securities convertible into capital stock of the
Company (including options, warrants or other convertible securities)).
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In the event that any adjustment under this Article IV would result in a
violation by the General Partner of the REIT Test, any such shares or other
securities which the Partnership would be entitled to acquire, or otherwise be
entitled to receive, shall only be issued extent that such shares or other
securities would not cause the General Partner to violate the REIT Test.
4.6 No Dilution or Impairment. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, 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 of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms 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 dilution or other impairment. Without limiting the generality of
the foregoing, the Company (i) will not increase the par value of any shares of
stock receivable upon the exercise of this Warrant above the amount payable
therefore upon such exercise, (ii) will at all times reserve and keep available
a number of its authorized shares of Series A Preferred Stock and Common Stock,
and/or other applicable securities, free from all pre-emptive rights therein,
which will be sufficient to permit the exercise in full of this Warrant, and
(iii) shall take all such actions as may be necessary or appropriate in order
that all the Warrant Shares will, upon issuance, be duly and validly issued,
fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issuance thereof.
4.7 Notices of Record Date, Etc. In the event of
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right
to subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities or property, or to receive any other
right,
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company, or any transfer
of all or substantially all the assets of the Company to, or
consolidation or merger of the Company with or into, any other person,
(c) any voluntary or involuntary dissolution, liquidation or winding-up of
the Company,
(d) any proposed issuance or grant by the Company of any shares of stock
of any class or any other securities, or any right or option to
subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities, or
(e) any other action that would require an adjustment to the number of
shares of Series A Preferred Stock subject to this Warrant, the
purchase price thereof or the kind or character of the securities
subject to this Warrant,
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then, and in each such event, the Company shall mail to the holder hereof a
notice specifying (i) the date on which any such record is to be taken for the
purpose of such dividend, distribution or right, (ii) the date on which any such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as of which the holders of records of Series A Preferred
Stock (or any shares of stock or other securities at the time issuable upon
exercise of this Warrant) shall be entitled to exchange their shares for
securities or other property deliverable upon such reorganization,
reclassification, recapitalization, transfer, consolidation, merger dissolution,
liquidation or winding-up, and (iii) the amount and character of any stock or
other securities, or rights or options with respect thereto, proposed to be
issued or granted, the date of such proposed issuance or grant and the persons
or class of persons to whom such proposed issuance or grant is to be offered or
made. Such notice shall be mailed at least 20 days prior to the date specified
in such notice.
ARTICLE V
COVENANTS
5.1 Investment Intent. Unless a current registration statement under the
Securities Act shall be in effect with respect to the securities to be issued
upon exercise of this Warrant, the holder, by accepting this Warrant, covenants
and agrees that, at the time of the exercise hereof, and at the time of any
proposed transfer of securities acquired by the holder upon exercise hereof, are
for the own account of the holder for investment and are not acquired with a
view to, or for sale in connection with, any distribution thereof and with no
present intention (at any such time) of offering and distributing such
securities or any portion thereof. By accepting this Warrant, the holder
represents and warrants to the Company that it is an "accredited investor"
within the meaning of Regulation D under the Securities Act of 1933, as amended.
5.2 Registration Rights.
(a) Same Rights as in Financing. Upon the issuance of the Warrant, the
Partnership shall be granted the same registration rights as the
investor purchasers of the Company's Series A Preferred Stock in the
Financing and shall be considered and treated as if the Partnership
were an original investor purchaser in the Financing. The term
"Financing" shall mean the sale by the Company of not less than Ten
Million Dollars ($10,000,000.00) of its equity securities, which
securities the Company currently expects to be Series A Preferred
Stock with a purchase price per share equal to 75% of the 5-trading
day trailing average closing price of the Company's Common Stock
ending on the third day prior to the closing date of the Financing.
(b) REIT Provisions. Notwithstanding the foregoing provisions of this
Section 5.3 or any other provision of this Warrant, there shall be no
limitation on a holder's sale or other disposition of this Warrant,
any Registrable Securities or other securities issued or to be issued
pursuant to this Warrant if the holder intends to qualify as a real
estate investment trust for federal
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income tax purposes and believes (as determined in the holder's sole
discretion) that continued ownership of such securities could have an
adverse impact on its ability to qualify as a real estate investment
trust.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices, consents, requests, instructions, approvals and
other communications provided for herein and all legal process in regard hereto
shall be in writing and shall be decreed to be validly given, made or served
when delivered personally, transmitted by telex or telecopier, or deposited in
the U.S. mail, postage prepaid, for delivery by express, registered or certified
mail, or delivered to a recognized overnight courier service, addressed as
follows:
If to the Company: Deltagen, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Partnership: AMB Property, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
or to such other address as may be specified in a notice given pursuant to this
Section. All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telecopied; when receipt acknowledged, and the next business
day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery. The parties may change the address to which
notices are to be given by giving five days' prior notice of such change in
accordance herewith.
6.2 Successors and Assigns. All the covenants and provisions of this
Warrant by or for the benefit of the Company shall bind and inure to the benefit
of its respective successors and assigns hereunder.
6.3 No Rights or Liabilities as a Shareholder. Nothing contained herein
shall be construed as conferring upon the holder any rights as a shareholder of
the Company or as imposing any obligation on such holder to purchase any
securities or as imposing any liabilities on such holder as a shareholder of the
Company, whether such obligation or liabilities are asserted by the Company or
by creditors of the Company.
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6.4 Governing Law. This Warrant shall be deemed to be a contract made under
the laws of the State of California and for all purposes shall be construed in
accordance with the internal laws of said State.
6.5 Benefits of this Warrant. Nothing in this Warrant shall be construed to
give to any person or corporation other than the Company and the holder of this
Warrant any legal or equitable right, remedy or claim under this Warrant; but
this Warrant shall be for the sole and exclusive benefit of the Company and the
holder of this Warrant.
6.6 Amendments and Waivers. No provision of this Warrant may be amended or
waived except by an instrument in writing signed by the Company. No failure or
delay by any party in exercising any right or remedy hereunder shall operate as
a waiver thereof, and a waiver of a particular right or remedy on one occasion
shall not be deemed a waiver of any other right or remedy or a waiver of the
same right or remedy on any subsequent occasion.
6.7 Construction, Interpretation. This Warrant shall not be construed for
or against any party by reason of the authorship or alleged authorship of any
provision hereof or by reason of the status of the respective parties. This
Warrant shall be construed reasonably to carry out its intent without
presumption against or in favor of any party. The captions on Sections are
provided for purposes of convenience and are not intended to limit, define the
scope of or aid in interpretation of any of the provisions hereof. All pronouns
and singular or plural references as used herein shall be deemed to have
interchangeably (where the sense of the sentence requires) a masculine, feminine
or neuter, and/or singular or plural meaning, as the case may be.
6.8 Damages. The Company recognizes and agrees that the holder hereof will
not have an adequate remedy if the Company fails to comply with the terms of
this Warrant and that damages will not be readily ascertainable, and the Company
expressly agrees that, in the event of such failure, it shall not oppose an
application by the holder of this Warrant or any other persons entitled to the
benefits of this Warrant requiring specific performance of any and all
provisions hereof or enjoining the Company from continuing to commit any such
breach of the terms hereof.
6.9 Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Warrant, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to its costs and expenses and any other
available remedy.
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6.10 Counterparts. This Warrant may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Dated: _______________ DELTAGEN, INC.
By:__________________________
Name:
Title:
Attest:
By:___________________________
Name:
Title:
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FORM OF ELECTION TO PURCHASE
(To Be Executed Upon Exercise Of Warrant)
The undersigned holder hereby represents that it is the registered holder of
this Warrant Certificate, and hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to receive __________ shares of Series
A Preferred Stock, $___ par value, of Deltagen, Inc. and herewith tenders
payment for such shares to the order of Deltagen, Inc. the amount of
$_______________ in accordance with the terms hereof (unless the holder is
exercising Warrant pursuant to the net exercise provisions of Section 5 of the
Warrant Agreement). The undersigned requests that a certificate for such shares
be registered in the name of the undersigned or nominee hereinafter set forth,
and further that such certificate be delivered to the undersigned at the address
hereinafter set forth or to such other person or entity as is hereinafter set
forth. If said number of shares is less than all of the shares of Common Stock
purchasable hereunder, the undersigned requests that a new Warrant Certificate
representing the remaining balance of such shares be registered in the name of
the undersigned or nominee hereinafter set forth, and further that such
certificate be delivered to the undersigned at the address hereinafter set forth
or to such other person or entity as is hereinafter set forth.
Certificate to be registered as follows:
Name: ________________________________________________
Address: ________________________________________________
________________________________________________
________________________________________________
Social Security or
Taxpayer Identification No.:_____________________________
Certificate to be delivered as follows:
Name: ________________________________________________
Address: ________________________________________________
________________________________________________
________________________________________________
Date:______________________ Signature: ___________________________
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ASSIGNMENT FORM
To assign this Warrant after the commencement of the Exercise Period (as defined
in the Warrant Agreement), fill in the form below:
(I) or (we) assign and transfer this Warrant to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
and irrevocably appoint ________________________________________________________
________________________________________________________________________________
agent to transfer this Warrant on the books of the Company. The agent may
substitute another to act for him.
Date: _____________ Your Signature: ______________________
(Sign exactly as your name appears
on the other side of this Warrant)
Signature Guarantee:
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