Exhibit 4.7
THIS WARRANT AND THE SHARES OF CAPITAL STOCK ISSUED UPON ANY EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD
OR OTHERWISE TRANSFERRED BY ANY PERSON, INCLUDING A PLEDGEE, UNLESS (1) EITHER
(A) A REGISTRATION WITH RESPECT TO THERETO SHALL BE EFFECTIVE UNDER THE
SECURITIES ACT, OR (B) THE COMPANY SHALL HAVE RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT IS AVAILABLE, AND (2) THERE SHALL HAVE BEEN COMPLIANCE WITH ALL
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS.
___________, 2006
WARRANT TO PURCHASE STOCK
OF
INTELLECT NEUROSCIENCES, INC.
(A DELAWARE CORPORATION)
INTELLECT NEUROSCIENCES, INC., a Delaware corporation (the "Company"), for
value received, hereby certifies that ___________ (the "Holder"), is entitled,
subject to the terms set forth below, to purchase from the Company, at any time
or from time to time at or before the earlier of 5:00 p.m. New York City time on
___________, 2011 (the "Expiration Date") and the termination of this Warrant as
provided in Section 8 hereof, ___________ shares of Common Stock, par value
$0.001 per share, of the Company (the "Common Stock"), at a purchase price (the
"Exercise Price") equal to $___________ per share, as adjusted upon the
occurrence of certain events as set forth in Section 3 of this Warrant. The
shares of stock issuable upon exercise of this Warrant are hereinafter referred
to as the "Warrant Stock".
1. Exercise.
1.1 Manner of Exercise: Payment in Cash. This Warrant may be exercised
by the Holder, in whole or in part, by surrendering this Warrant, with the
purchase form appended hereto as Exhibit A duly executed by the Holder, at
the principal office of the Company, or at such other place as the Company
may designate, accompanied by payment in full of the Exercise Price payable
in respect of the number of shares of Warrant Stock purchased upon such
exercise. Payment of the Exercise Price shall be in cash or by certified or
official bank check payable to the order of the Company.
1.2 Automatic Exercise. Immediately before the expiration or
termination of this Warrant, to the extent this Warrant is not previously
exercised, and at such time the
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fair market value of one share of the Company's Common Stock subject to
this Warrant is greater than the Exercise Price, then in effect as adjusted
pursuant to this Warrant, this Warrant shall be deemed automatically
exercised pursuant to Section 1.1 above, even if not surrendered. For
purposes of such automatic exercise, the fair market value of the Company's
Common Stock upon such expiration shall be determined pursuant to Section
3.4 herein. To the extent this Warrant or any portion thereof is deemed
automatically exercised pursuant to this Section 1.2, the Company agrees to
promptly notify the Holder of the number of shares of Warrant Stock, if
any, the Holder hereof is to receive by reason of such automatic exercise.
1.3 Effectiveness. Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the day on
which this Warrant shall have been surrendered to the Company as provided
in Section 1.1 above. At such time, the person or persons in whose name or
names any certificates for Warrant Stock shall be issuable upon such
exercise as provided in Section 1.5 below shall be deemed to have become
the holder or holders of record of the Warrant Stock represented by such
certificates.
1.4. Delivery of Certificates. As soon as practicable after the
exercise of this Warrant in full or in part, and in any event within ten
(10) business days thereafter, the Company at its sole expense will cause
to be issued in the name of, and delivered to, the Holder, or, subject to
the terms and conditions hereof, as such Holder (upon payment by such
Holder of any applicable transfer taxes) may direct:
(a) A certificate or certificates for the number of full shares
of Warrant Stock to which such Holder shall be entitled upon such
exercise plus, in lieu of any fractional share to which such Holder
would otherwise be entitled, cash in an amount determined pursuant to
Section 2 hereof, and
(b) In case such exercise is in part only, a new warrant or
warrants (dated the date hereof) of like tenor, calling in the
aggregate on the face or faces thereof for the number of shares of
Warrant Stock (without giving effect to any adjustment therein) equal
to the number of such shares called for on the face of this Warrant
minus the number of such shares purchased by the Holder upon such
exercise as provided in Section 1.1 above.
2. Fractional Shares. The Company shall not be required upon the exercise
of this Warrant to issue any fractional shares. As to any fraction of a share
which the Holder would otherwise be entitled to purchase upon such exercise, the
Company shall pay a cash adjustment in respect of such final fraction in an
amount equal to such fraction multiplied by the Exercise Price.
3. Certain Adjustments.
3.1 Changes in Common Stock. If, after the Determination Date, the
Company shall (i) combine the outstanding shares of Common Stock into a
lesser number of shares, (ii) subdivide the outstanding shares of Common
Stock into a greater number of shares, or
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(iii) issue additional shares of Common Stock as a dividend or other
distribution with respect to the Common Stock, the number of shares of
Warrant Stock shall be equal to the number of shares which the Holder would
have been entitled to receive after the happening of any of the events
described above if such shares had been issued immediately prior to the
happening of such event, such adjustment to become effective concurrently
with the effectiveness of such event. The Exercise Price in effect
immediately prior to any such combination of Common Stock shall, upon the
effectiveness of such combination, be proportionately increased. The
Exercise Price in effect immediately prior to any such subdivision of
Common Stock or at the record date of such dividend shall upon the
effectiveness of such subdivision or immediately after the record date of
such dividend be proportionately reduced.
3.2 Reorganizations and Reclassifications. If, after the Determination
Date, there shall occur any capital reorganization or reclassification of
the Common Stock (other than a change in par value or a subdivision or
combination as provided for in Section 3.1), then, as part of any such
reorganization or reclassification, lawful provision shall be made so that
the Holder shall have the right thereafter to receive upon the exercise
hereof the kind and amount of shares of stock or other securities or
property which such Holder would have been entitled to receive if,
immediately prior to any such reorganization or reclassification, such
Holder had held the number of shares of Common Stock which were then
purchasable upon the exercise of this Warrant. In any such case,
appropriate adjustment (as reasonably determined by the Board of Directors
of the Company) shall be made in the application of the provisions set
forth herein with respect to the rights and interests thereafter of the
Holder such that the provisions set forth in this Section 3 (including
provisions with respect to adjustment of the Exercise Price) shall
thereafter be applicable, as nearly as is reasonably practicable, in
relation to any shares of stock or other securities or property thereafter
deliverable upon the exercise of this Warrant.
3.3 Merger, Consolidation or Sale of Assets. If, after the
Determination Date, there shall be a merger or consolidation of the Company
with or into another corporation (other than a merger or reorganization
involving only a change in the state of incorporation of the Company or the
acquisition by the Company of other businesses where the Company survives
as a going concern), or the sale of all or substantially all of the
Company's capital stock or assets to any other person, then as a part of
such transaction, provision shall be made so that the Holder shall
thereafter be entitled to receive the number of shares of stock or other
securities or property of the Company, or of the successor corporation
resulting from the merger, consolidation or sale (and at a total purchase
price not to exceed that payable upon the exercise in full of this
Warrant), to which the Holder would have been entitled if the Holder had
exercised its rights pursuant to the Warrant immediately prior thereto. In
any such case, appropriate adjustment shall be made in the application of
the provisions of this Section 3 to the end that the provisions of this
Section 3 shall be applicable after that event in as nearly equivalent a
manner as may be practicable.
3.4 Certain Anti-Dilution Adjustments. If at any time after the
Determination Date while any portion of this Warrant remains outstanding,
the Company shall issue
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shares of Common Stock (or rights, warrants, or other securities
convertible into or exchangeable for shares of Common Stock, other than
issuances covered by Sections 3.1, 3.2 or 3.3 above, at a price per share
(or having an exercise, conversion, or exchange price per share) less than
the Exercise Price in effect as of the date of issuance of such shares or
of such rights, warrants, or other convertible or exchangeable securities,
then, and in each such case, the Exercise Price shall be reduced (but not
increased) to a price determined by dividing (A) an amount equal to the sum
of (x) the number of shares of Common Stock outstanding immediately prior
to such issue (determined on a fully-diluted basis; i.e., treating as
outstanding all shares of Common Stock issuable upon exercise, exchange or
conversion of all outstanding options (to the extent then vested and
exercisable), warrants, or other securities exercisable or exchangeable for
or convertible into, directly or indirectly, shares of Common Stock)
multiplied by the then existing Exercise Price, plus (y) the consideration,
if any received by the Company upon such issue, by (B) the total number of
shares of Common Stock outstanding immediately after such issue or sale
(determined on a fully-diluted basis as aforesaid). For the purpose of
determining the consideration received by the Company upon any such issue
pursuant to clause (y) above, if the consideration received by the Company
is other than cash, its value will be deemed its fair market value, which
if not readily determinable shall be determined in good faith by the Board
of Directors of the Company. An adjustment made pursuant to the paragraph
shall be made on the next business day following the date on which any such
issuance is made and shall be effective retroactively immediately after the
close of business on such date. Notwithstanding anything contrary in this
Section, there shall be no reduction to the Exercise Price pursuant to this
Section with respect to (i) the issuance or sale of options to purchase
shares of Common Stock to employees, consultants and directors, pursuant to
a stock option plan approved by the Board of Directors, (ii) securities
issued in connection with the Company's initial public offering of its
securities pursuant to a registration statement declared effective by the
Securities and Exchange Commission which raises gross proceeds to the
Company of at least Ten Million Dollars ($10,000,000) or any securities
issued by the Company thereafter, (iii) the issuance of securities pursuant
to the conversion or exercise of convertible or exercisable securities as
of the date of this Warrant, (as adjusted for recapitalizations, stock
splits, and the like) which are currently outstanding as of the date of
this Warrant or (iv) the issuance of securities as consideration for a bona
fide business acquisition of or by the Company, whether by merger,
consolidation, sale of assets, sale or exchange of stock or otherwise,
which involves a third party which is not affiliated with the Company or
its current stockholders or in a strategic allowance.
3.5 No Impairment. The Company will not, by amendment of its Articles
of Incorporation or any other organizational or shareholder rights
documents of the Company, or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, 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 Section 3 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.
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3.6 Certificate of Adjustment. When any adjustment is required to be
made in the Exercise Price, the Company shall promptly mail to the Holder a
certificate setting forth the Exercise Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment.
Delivery of such certificate shall be deemed to be a final and binding
determination with respect to such adjustment unless challenged by the
Holder within ten (10) days of receipt thereof. Such certificate shall also
set forth the kind and amount of stock or other securities or property into
which this Warrant shall be exercisable following the occurrence of any of
the events specified in this Section 3.
4. Compliance with Securities Act.
4.1 Unregistered Securities. The Holder acknowledges that this Warrant
and the Warrant Stock have not been registered under the Securities Act of
1933, as amended, and the rules and regulations thereunder, or any
successor legislation, and agrees not to sell, pledge, distribute, offer
for sale, transfer or otherwise dispose of this Warrant or any Warrant
Stock in the absence of (i) an effective registration statement under the
Securities Act covering this Warrant or such Warrant Stock and registration
or qualification of this Warrant or such Warrant Stock under any applicable
"blue sky" or state securities law then in effect, or (ii) an opinion of
counsel, reasonably satisfactory to the Company, that such registration and
qualification are not required. The Company may delay issuance of the
Warrant Stock until completion of any action or obtaining of any consent,
which the Company reasonably deems necessary under any applicable law
(including without limitation state securities or "blue sky" laws);
provided, that the Company will use reasonable best efforts to complete
such action or obtain such consent as soon as practicable.
4.2 Investment Letter. Without limiting the generality of Section 4.1,
unless the offer and sale of any shares of Warrant Stock shall have been
effectively registered under the Securities Act, the Company shall be under
no obligation to issue the Warrant Stock unless and until the Holder shall
have executed a customary investment letter in form and substance
reasonably satisfactory to the Company, including a warranty at the time of
such exercise that the Holder is acquiring such shares for its own account,
for investment and not with a view to, or for sale in connection with, the
distribution of any such shares.
4.3 Legend. Certificates delivered to the Holder pursuant to Section
1.3 shall bear the following legend or a legend in substantially similar
form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN TAKEN FOR INVESTMENT
AND THEY MAY NOT BE SOLD OR OTHERWISE TRANSFERRED BY ANY PERSON, INCLUDING
A PLEDGEE, IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT AN EXEMPTION
FROM REGISTRATION IS THEN AVAILABLE."
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5. Registration Rights.
5.1 Certain Definitions. As used in this Section 5, the following
terms shall have the following respective meanings:
"Holder" shall mean the record owner of Registrable Securities.
The terms "Register" "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement
in compliance with the Securities Act ("Registration Statement"), and
the declaration or ordering of the effectiveness of such Registration
Statement.
"Registrable Securities" shall mean all Common Stock not previously
sold to the public and issued to the Holder pursuant to the exercise
of this Warrant, or Common Stock issued with respect to such shares
pursuant to stock splits, stock dividends and similar distributions
with respect to such shares, provided, however, that shares of Common
Stock which are Registrable Securities shall cease to be Registrable
Securities at such time, and for so long as, such shares are eligible
for sale pursuant to Rule 144(k) under the Securities Act.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Section 5.2 of this Agreement, including,
without limitation, all federal and state registration, qualification
and filing fees, printing expenses, fees and disbursements of counsel
for the Company, blue sky fees and the expense of any special audits
incident to or required by any such registration, but shall not
include Selling Expenses.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities pursuant
to this Agreement and all expenses of any special counsel for the
Holder.
5.2 Piggyback Registration.
5.2.1 Notice of Piggyback Registration and Inclusion of
Registrable Securities. Subject to the terms of this Agreement, in the
event the Company decides to Register any of its Common Stock for cash
(either for its own account or the account of a security holder),
other than pursuant to a Registration Statement which exclusively
relates to the Registration of securities under an employee stock
option, purchase, bonus or other benefit plan, then for so long as the
Holder holds Registrable Securities, the Company will: (1) promptly
give the Holder written notice thereof (which shall include a list of
the jurisdictions in which the Company intends to attempt to qualify
such securities under the applicable Blue Sky or other state
securities laws) and (2) include in such Registration (and any related
qualification under Blue Sky laws or other compliance), and in any
underwriting
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involved therein, all the Registrable Securities specified in a
written request delivered to the Company by the Holder within 10 days
after delivery of such written notice from the Company. The right of
the Holder to have Registrable Securities included in any Registration
Statement shall be conditioned upon the provision by the Holder of any
information reasonably requested by the Company within ten (10) days
of such request.
5.2.2 Underwriting in Piggyback Registration. If the Registration
of which the Company gives notice is a Registered public offering
involving an underwriting, the Company shall so advise the Holder as a
part of the written notice given pursuant to Subsection 5.2.1. In such
event the right of the Holder to Registration shall be conditioned
upon such underwriting. The Holder shall, together with the Company,
enter into an underwriting agreement with the Underwriter's
Representative for such offering. The Holder shall have no right to
participate in the selection of the underwriters for an offering
pursuant to this Section.
5.2.3 Withdrawal in Piggyback Registration. If the Holder
disapproves of the terms of any such underwriting, it may elect to
withdraw therefrom by written notice to the Company and the
underwriter delivered at least seven (7) days prior to the effective
date of the Registration Statement. Any Registrable Securities or
other securities excluded or withdrawn from such underwriting shall be
withdrawn from such Registration.
5.3 Obligations of the Company and the Holder.
5.3.1 Underwriting Requirements. In connection with any offering
involving an underwriting of shares pursuant to Section 5.2 the
Company shall not be required to include any of the Holder's
Registrable Securities in such underwriting unless they accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it.
5.3.2 Expenses of Registration. All Registration Expenses
incurred in connection with all Registrations pursuant to Section 5.2
shall be borne by the Company. Selling Expenses to be borne by the
holders of the Registrable Securities Registered shall be borne pro
rata on the basis of the number of Registrable Securities being
Registered.
5.4 Indemnification.
5.4.1 Company's Indemnification of the Holder. The Company will
indemnify the Holder, and each of its directors, officers,
stockholders, partners or other beneficial owners, and each person
controlling the Holder, with respect to which Registration,
qualification or compliance of Registrable Securities has been
effected pursuant to this Warrant, and each underwriter, if any, and
each person who controls any underwriter against all claims, losses,
damages or liabilities,
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including reasonable legal fees and expenses (or actions in respect
thereof) to the extent such claims, losses, damages or liabilities
arise out of or are based upon any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus or other
document (including any related Registration Statement) incident to
any such Registration, qualification or compliance, or are based on
any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act applicable to the
Company and relating to action or inaction required of the Company in
connection with any such Registration, qualification or compliance;
and the Company will reimburse the Holder, each of its directors,
officers, stockholders, partners or other beneficial owners, each such
underwriter and each person who controls the Holder or underwriter for
any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that the indemnity contained
in this Section 5.4 shall not apply to amounts paid in settlement of
any such claim, loss, damage, liability or action if settlement is
effected without the consent of the Company (which consent shall not
unreasonably be withheld); and provided, further, that the Company
will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based upon any
untrue statement or omission based upon written information furnished
to the Company by the Holder, underwriter or controlling person and
stated to be for use in connection with the offering of securities of
the Company.
5.4.2 The Holder's Indemnification of Company. The Holder will,
if Registrable Securities held by the Holder are included in the
securities as to which such Registration, qualification or compliance
is being effected pursuant to this Warrant, indemnify the Company,
each of its directors and officers, each legal counsel and independent
accountant of the Company, each underwriter, if any, of the Company's
securities covered by such a Registration Statement, and each person
who controls the Company or such underwriter within the meaning of the
Securities Act against all claims, losses, damages or liabilities,
including reasonable legal fees and expenses (or actions in respect
thereof), to the extent such claims, losses, damages or liabilities
arise out of or based upon any untrue statement (or alleged untrue
statement) of a material fact furnished in writing by the Holder or on
the Holder's behalf expressly for use in any such Registration
Statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Holder of any rule or
regulation promulgated under the Securities Act applicable to the
Holder and relating to action or inaction required of the Holder in
connection with any such Registration, qualification or compliance;
and will reimburse the Company, such directors, officers, partners,
persons, law and accounting firms, underwriters or control persons for
any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the
extent, that
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such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such Registration Statement, prospectus,
offering circular or other document in reliance upon and in conformity
with written information furnished to the Company by the Holder and
stated to be specifically for use in connection with the offering of
securities of the Company; provided, however, that the Holders'
liability under this Section 5.4 shall not exceed the Holder's
proceeds from the offering of securities made in connection with such
Registration.
5.4.3 Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 5.4 of notice of the commencement
of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section
5.4, notify the indemnifying party in writing of the commencement
thereof and generally summarize such action. The indemnifying party
shall have the right to participate in and to assume the defense of
such claim; provided, however, that the indemnifying party shall be
entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval
shall not be unreasonably withheld; provided further, however, that if
either party reasonably determines that there may be a conflict
between the position of the Company and the Holders in conducting the
defense of such action, suit or proceeding by reason of recognized
claims for indemnity under this Section 5.4, then counsel for such
party shall be entitled to conduct the defense to the extent
reasonably determined by such counsel to be necessary to protect the
interest of such party. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to the
ability of the indemnifying party to defend such action, shall relieve
such indemnifying party, to the extent so prejudiced, of any liability
to the indemnified party under this Section 5.4, but the omission so
to notify the indemnifying party will not relieve such party of any
liability that such party may have to any indemnified party otherwise
other than under this Section 5.4.
5.4.4 Subsequent Transferees. The provisions of this Section 5.4
applicable to the Holder shall apply with equal force and effect to
each subsequent transferee to whom any of the Registrable Securities
are transferred with the consent of the Company.
6. Reservation of Stock. The Company will at all times thereafter reserve
and keep available, solely for issuance and delivery upon the exercise of this
Warrant, such shares of Warrant Stock and other stock, securities and property,
as from time to time shall be issuable upon the exercise of this Warrant. The
Company covenants that all shares of Warrant Stock so issuable will, when
issued, be duly and validly issued and fully paid and nonassessable.
7. Replacement of Warrants. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (with surety if reasonably required) in an amount reasonably
satisfactory to the Company, or (in the case of mutilation) upon surrender and
cancellation of this Warrant, the Company will issue, in lieu thereof, a new
Warrant of like tenor.
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8. Termination upon Certain Events. If there shall be a merger or
consolidation of the Company with or into another corporation (other than a
merger or reorganization involving only a change in the state of incorporation
of the Company or the acquisition by the Company of other businesses where the
Company survives as a going concern), or the sale of all or substantially all of
the Company's capital stock or assets to any other person, or the liquidation or
dissolution of the Company, then as a part of such transaction, at the Company's
option, either:
(a) provision shall be made so that the Holder shall thereafter be
entitled to receive the number of shares of stock or other securities or
property of the Company, or of the successor corporation resulting from the
merger, consolidation or sale, to which the Holder would have been entitled
if the Holder had exercised its rights pursuant to the Warrant immediately
prior thereto (and, in such case, appropriate adjustment shall be made in
the application of the provisions of this Section 8(a) to the end that the
provisions of Section 3 shall be applicable after that event in as nearly
equivalent a manner as may be practicable); or
(b) this Warrant shall terminate on the effective date of such merger,
consolidation or sale (the "TERMINATION DATE") and become null and void,
provided that if this Warrant shall not have otherwise terminated or
expired, (1) the Company shall have given the Holder written notice of such
Termination Date at least ten (10) business days prior to the occurrence
thereof and (2) the Holder shall have the right until 5:00 p.m., Eastern
Standard Time, on the day immediately prior to the Termination Date to
exercise its rights hereunder to the extent not previously exercised.
9. Transferability. Without the prior written consent of the Company, which
consent shall not be unreasonably withheld or delayed, the Warrant shall not be
assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process.
Any attempted transfer, assignment, pledge, hypothecation or other disposition
of the Warrant or of any rights granted hereunder contrary to the provisions of
this Section 8, or the levy of any attachment or similar process upon the
Warrant or such rights, shall be null and void.
10. No Rights as Stockholder. Until the exercise of this Warrant, the
Holder shall not have or exercise any rights by virtue hereof as a stockholder
of the Company.
11. Company's Representations.
As a material inducement to the Holder to purchase this Warrant, the
Company hereby represents and warrants that:
(a) The Company shall have made all filings under applicable federal
and state securities laws necessary to consummate the issuance of this
Warrant pursuant to this Agreement in compliance with such laws, except for
such filings as may be made properly after the Grant Date.
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(b) If there are parties to any stock purchase agreements whose
consent or approval is required prior to the execution and delivery of this
Warrant, the Company and any such parties shall have entered into an
amendment to each such stock purchase agreement to provide for such consent
and any required waivers, in such form and substance acceptable to the
Holder, and such amendment shall be in full force and effect as of the date
hereof.
(c) If there are parties to any investor's rights agreements whose
consent or approval is required prior to the execution and delivery of this
Warrant, the Company and any such parties shall have entered into an
amendment to each such investor's rights agreement providing for such
consent and any required waivers, in such form and substance acceptable to
Holder, and such amendment shall be in full force and effect as of the date
hereof.
(d) The copies of any existing stock purchase agreements and
investor's rights agreements and the Company's charter documents and bylaws
which have been furnished to Holder or the Holder's counsel reflect all
amendments made thereto at any time prior to the date hereof and are
correct and complete.
(e) As of the date hereof, all of the outstanding shares of the
Company's capital stock shall be validly issued, fully paid and
nonassessable.
(f) With respect to the issuance of this Warrant or the issuance of
the Common Stock upon exercise of the Warrant, there are no statutory or
contractual stockholders preemptive rights or rights of refusal, except for
any such rights contained in any stock purchase agreement and/or investor's
rights agreements which have been waived. The Company has not violated any
applicable federal or state securities laws in connection with the offer,
sale or issuance of any of its capital stock, and the offer, sale and
issuance of this Warrant does not require registration under the Securities
Act or any applicable state securities laws. To the best of the Company's
knowledge, there are no agreements between the Company's stockholders with
respect to the voting or transfer of the Company's capital stock or with
respect to any other aspect of the Company's affairs, except for any stock
purchase agreements and any investor's rights agreements identified on the
attached Capitalization Schedule.
(g) The execution, delivery and performance of this Warrant has been
duly authorized by the Company. This Warrant constitutes a valid and
binding obligation of the Company, enforceable in accordance with its
terms. The execution and delivery by the Company of this Warrant, the
issuance of the Common Stock upon exercise of the Warrant, and the
fulfillment of and compliance with the respective terms hereof and thereof
by the Company, do not and shall not (i) conflict with or result in a
breach of the terms, conditions or provisions of, (ii) constitute a default
under, (iii) result in the creation of any lien, security interest, charge
or encumbrance upon the Company's capital stock or assets pursuant to, (iv)
give any third party the right to modify, terminate or accelerate any
obligation under, (v) result in a violation of, or (vi) require any
authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing with, any court
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or administrative or governmental body or agency pursuant to, the charter
or bylaws of the Company or any subsidiary, or any law, statute, rule or
regulation to which the Company or any subsidiary is subject, or any
agreement, instrument, order, judgment or decree to which the Company or
any subsidiary is subject, except for any such filings required under
applicable "blue sky" or state securities laws or required under Regulation
D promulgated under the Securities Act.
12. Notices. All notices, requests and other communications hereunder shall
be in writing, shall be (i) delivered by hand, (ii) made by telex, telecopy or
facsimile transmission, (iii) sent by overnight courier, or (iv) sent by
registered mail, postage prepaid, return receipt requested. In the case of
notices from the Company to the Holder, they shall be sent to the address
furnished to the Company in writing by the last Holder who shall have furnished
an address to the Company in writing. All notices from the Holder to the Company
shall be delivered to the Company at its offices at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other address as the Company shall so notify the Holder.
All notices, requests and other communications hereunder shall be deemed to have
been given (i) by hand, at the time of the delivery thereof to the receiving
party at the address of such party described above, (ii) if made by telex,
telecopy or facsimile transmission, at the time that receipt thereof has been
acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight
courier, on the next business day following the day such notices is delivered to
the courier service, or (iv) if sent by registered mail, on the fifth business
day following the day such mailing is made.
13. Waivers and Modifications. Any term or provision of this Warrant may be
waived only by written document executed by the party entitled to the benefits
of such terms or provisions. The terms and provisions of this Warrant may be
modified or amended only by written agreement executed by the parties hereto.
14. Headings. The headings in this Warrant are for convenience of reference
only and shall in no way modify or affect the meaning or construction of any of
the terms or provisions of this Warrant.
15. Governing Law. This Warrant will be governed by and construed in
accordance with and governed by the laws of the State of New York, without
giving effect to the conflict of law principles thereof.
16. Consent to Jurisdiction. Each party hereto hereby irrevocably and
unconditionally submits to the jurisdiction of any federal or state court
sitting in the County of New York in the State of New York and irrevocably
agrees that all actions or proceedings arising out of or relating to this Note
shall be litigated exclusively in such court. Each party hereto agrees not to
commence any legal proceeding related hereto or thereto except in such courts.
Each party hereto irrevocably waives any objection which it may now or hereafter
have to the laying of the venue of any such proceeding in any such court and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum. Each party hereto consents
to process being served in any such action or proceeding by mailing a copy
thereof by registered or certified mail.
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17. Waiver of Jury Trial. Each party hereto hereby waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in
respect of any litigation directly or indirectly arising out of, under or in
connection with this Note. Each party hereto (1) certifies that no
representative, agent or attorney of any of the other parties has represented,
expressly or otherwise, that any of the other parties would not, in the event of
litigation, seek to enforce the foregoing waiver and (2) acknowledges that it
and the other parties hereto have been induced to enter into this agreement, by,
among other things, the mutual waivers and certifications in this Section 17.
18. Severability. If any term, provision, covenant or restriction of this
Warrant is held by a court of competent jurisdiction to be invalid, void or
unenforceable, it shall be deemed replaced with a valid and enforceable
provision that comes as close as possible to the economic purpose of the
invalid, void or unenforceable provision, and the remainder of the terms,
provisions, covenants and restrictions of this Warrant shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, this Warrant has been executed and delivered on the
date first written above by the duly authorized representative of the Company.
INTELLECT NEUROSCIENCES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT A
PURCHASE FORM
To: INTELLECT NEUROSCIENCES, INC.
The undersigned pursuant to the provisions set forth in the attached
Warrant (No. ____), hereby irrevocably elects to purchase shares of the Common
Stock, par value $0.01 per share, of INTELLECT NEUROSCIENCES, INC. (the "COMMON
STOCK"), covered by such Warrant and herewith makes payment of $_____,
representing the full purchase price for such shares at the price per share
provided for in such Warrant.
The Common Stock for which the Warrant may be exercised or converted shall
be known herein as the "Warrant Stock".
The undersigned is aware that the Warrant Stock has not been and will not
be registered under the Securities Act of 1933, as amended (the "SECURITIES
ACT") or any state securities laws. The undersigned understands that reliance by
the Company on exemptions under the Securities Act is predicated in part upon
the truth and accuracy of the statements of the undersigned in this Purchase
Form.
The undersigned represents and warrants that (1) it has been furnished with
all information which it deems necessary to evaluate the merits and risks of the
purchase of the Warrant Stock, (2) it has had the opportunity to ask questions
concerning the Warrant Stock and the Company and all questions posed have been
answered to its satisfaction, (3) it has been given the opportunity to obtain
any additional information it deems necessary to verify the accuracy of any
information obtained concerning the Warrant Stock and the Company and (4) it has
such knowledge and experience in financial and business matters that it is able
to evaluate the merits and risks of purchasing the Warrant Stock and to make an
informed investment decision relating thereto.
The undersigned hereby represents and warrant that it is purchasing the
Warrant Stock for its own account for investment and not with a view to the sale
or distribution of all or any part of the Warrant Stock.
The undersigned understands that because the Warrant Stock has not been
registered under the Securities Act, it must continue to bear the economic risk
of the investment for an indefinite period of time and the Warrant Stock cannot
be sold unless it is subsequently registered under applicable federal and state
securities laws or an exemption from such registration is available.
The undersigned agrees that it will in no event sell or distribute or
otherwise dispose of all or any part of the Warrant Stock unless (1) there is an
effective registration statement under the Securities Act and applicable state
securities laws covering any such transaction involving the Warrant Stock, or
(2) the Company receives an opinion satisfactory to the Company of the
undersigned's legal counsel stating that such transaction is exempt from
registration. The undersigned consents to the placing of a legend on its
certificate for the Warrant Stock stating that
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the Warrant Stock has not been registered and setting forth the restriction on
transfer contemplated hereby and to the placing of a stop transfer order on the
books of the Company and with any transfer agents against the Warrant Stock
until the Warrant Stock may be legally resold or distributed without
restriction.
The undersigned has considered the federal and state income tax
implications of the exercise of the Warrant and the purchase and subsequent sale
of the Warrant Stock.
By:
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Name:
----------------------------------
Title:
---------------------------------
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