Exhibit 10.60
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE
SOLD OR OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL (WHICH MAY BE
COUNSEL FOR THE COMPANY) REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT.
No. 2
STOCK SUBSCRIPTION WARRANT
To Purchase Common Stock of
ONTOGENY, INC. (the "Company")
DATE OF INITIAL ISSUANCE: November 15, 1999
THIS CERTIFIES THAT for value received, TBCC FUNDING TRUST I or its
registered assigns (hereinafter called the "Holder") is entitled to purchase
from the Company, at any time during the Term of this Warrant, Ten Thousand
(10,000) shares of common stock, $0.01 par value, of the Company (the "Common
Stock"), at the Warrant Price, payable as provided herein. The exercise of this
Warrant shall be subject to the provisions, limitations and restrictions herein
contained, and may be exercised in whole or in part.
SECTION 1. Definitions.
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For all purposes of this Warrant, the following terms shall have the
meanings indicated:
Common Stock - shall mean and include the Company's authorized Common
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Stock, $0.01 par value, as constituted at the date hereof
Exchange Act - shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
Securities Act - the Securities Act of 1933, as amended.
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Term of this Warrant - shall mean the period beginning on the date of
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initial issuance hereof and ending on the earlier to occur of (i) five years
from the date of issuance or (ii) Borrower's initial public offering, subject to
the provisions of Section 2.3 below.
Warrant Price - $5.00 per share, subject to adjustment in accordance with
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Section 5 hereof.
Warrants - this Warrant and any other Warrant or Warrants issued in
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connection with a Commitment Letter dated June 1, 1999 executed by the Company
and Transamerica Business Credit Corporation (the "Commitment Letter") to the
original holder of this Warrant, or any transferees from such original holder or
this Holder.
Warrant Shares - shares of Common Stock purchased or purchasable by the
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Holder of this Warrant upon the exercise hereof.
SECTION 2. Exercise of Warrant.
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2.1. Procedure for Exercise of Warrant. This Warrant may be exercised in
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whole or in part by the Holder at any time, or from time to time, prior to the
expiration of the Term. To exercise this Warrant in whole or in part (but not as
to any fractional share of Common Stock), the Holder shall deliver to the
Company at its office referred to in Section 13 hereof at any time and from time
to time during the Term of this Warrant: (i) the Notice of Exercise in the form
attached hereto, (ii) cash, certified or official bank check payable to the
order of the Company or wire transfer of funds to the Company's account (or any
combination of any of the foregoing) in the amount of the Warrant Price for each
share being purchased, and (iii) this Warrant. Notwithstanding any provisions
herein to the contrary, if the Current Market Price (as defined in Section 5) is
greater than the Warrant Price (at the date of exercise, as set forth below), in
lieu of exercising this Warrant as hereinabove permitted, the Holder may elect
to receive shares of Common Stock equal to the value (as determined below) of
this Warrant (or the portion thereof being canceled) by surrender of this
Warrant at the office of the Company referred to in Section 13 hereof, together
with the Notice of Exercise, in which event the Company shall issue to the
Holder that number of shares of Common Stock computed using the following
formula:
CS = WCS X (CMP-WP)
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CMP
Where
CS equals the number of shares of Common Stock to be issued to the Holder
WCS equals the number of shares of Common Stock purchasable under the
Warrant or, if only a portion of the Warrant is being exercised, the
portion of the Warrant being exercised (at the date of exercise)
CMP equals the Current Market Price (at the date of exercise)
WP equals the Warrant Price (as adjusted to the date of exercise)
In the event of any exercise of the rights represented by this Warrant, a
certificate or certificates for the shares of Common Stock so purchased,
registered in the name of the Holder or such other name or names as may be
designated by the Holder, shall be delivered
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to the Holder hereof within a reasonable time, not exceeding fifteen (15) days,
after the rights represented by this Warrant shall have been so exercised; and,
unless this Warrant has expired, a new Warrant representing the number of shares
(except a remaining fractional share), if any, with respect to which this
Warrant shall not then have been exercised shall also be issued to the Holder
hereof within such time. The person in whose name any certificate for shares of
Common Stock is issued upon exercise of this Warrant shall for all purposes be
deemed to have become the holder of record of such shares on the date on which
the Notice of Exercise and Warrant is delivered to the Company and payment of
the Warrant Price and any applicable taxes is made, irrespective of the date of
delivery of such certificate, except that, if the date of such surrender and
payment is a date when the stock transfer books of the Company are closed, such
person shall be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the stock transfer books are open.
2.2. Transfer Restriction Legend. Each certificate for Warrant Shares
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shall bear the following legend (and any additional legend required by (i) any
applicable state securities laws and (ii) any securities exchange upon which
such Warrant Shares may, at the time of such exercise, be listed) on the face
thereof unless at the time of exercise such Warrant Shares shall be registered
under the Securities Act:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
may not be offered, sold or otherwise transferred, pledged
or hypothecated unless and until such shares are registered
under such Act, or an opinion of counsel satisfactory to the
Company is obtained to the effect that such registration is
not required."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution under a registration statement of the securities
represented thereby) shall also bear such legend unless, in the opinion of
counsel for the holder thereof (which counsel shall be reasonably satisfactory
to counsel for the Company) the securities represented thereby are not, at such
time, required by law to bear such legend.
2.3. Acceleration of Term Upon Initial Public Offering. Notwithstanding
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any provision to the contrary contained in this Warrant, the Holder's right to
exercise this Warrant shall expire, if not previously exercised, immediately
upon the closing of the issuance and sale of shares of Common Stock in the
Company's first public offering of securities for its own account pursuant to an
effective registration statement under the Securities Act (the "Initial Public
Offering"), provided that the underwriters request that the Holder exercise this
Warrant and provide at least fifteen (15) business days' opportunity to
exercise.
The Company shall notify the Holder if the Initial Public Offering is proposed,
within a reasonable period of time prior to the filing of a registration
statement. Such notice shall
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contain such details of the proposed Initial Public Offering as are reasonable
in the circumstances and notice that this Warrant is expected to expire upon
closing thereof (provided such notice is delivered at least fifteen (15)
business days prior thereto). If such closing does not take place, the Company
shall promptly notify the Holder that such proposed transaction has been
terminated. Anything to the contrary in this Warrant notwithstanding, the Holder
may rescind any exercise promptly after such notice of termination of the
proposed transaction if the exercise occurred after the Company notified the
Holder that the Initial Public Offering was proposed or if the exercise were
otherwise precipitated by such proposed Initial Public Offering. In the event of
such rescission, this Warrant will continue to be exercisable on the same terms
and conditions.
SECTION 3. Covenants as to Common Stock. The Company covenants and agrees
----------------------------
that all shares of Common Stock that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly issued, fully
paid and nonassessable, and free from all taxes, liens and charges with respect
to the issue thereof. The Company further covenants and agrees that it will pay
when due and payable any and all federal and state taxes (not including taxes on
or measured by the net income or capital gains of the Holder) which may be
payable in respect of the issue of this Warrant or any Common Stock or
certificates therefor issuable upon the exercise of this Warrant. The Company
further covenants and agrees that the Company will at all times have authorized
and reserved, free from preemptive rights, a sufficient number of shares of
Common Stock to provide for the exercise of the rights represented by this
Warrant. The Company further covenants and agrees that if any shares of capital
stock to be reserved for the purpose of the issuance of shares upon the exercise
of this Warrant require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly
issued or delivered upon exercise, then the Company will in good faith and as
expeditiously as possible endeavor to secure such registration or approval, as
the case may be. If and so long as the Common Stock issuable upon the exercise
of this Warrant is listed on any national securities exchange, the Company will,
if permitted by the rules of such exchange, list and keep listed on such
exchange, upon official notice of issuance, all shares of such Common Stock
issuable upon exercise of this Warrant.
SECTION 4. Adjustment of Number of Shares. Upon each adjustment of the
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Warrant Price as provided in Section 5, the Holder shall thereafter be entitled
to purchase, at the Warrant Price resulting from such adjustment, the number of
shares (calculated to the nearest tenth of a share) obtained by multiplying the
Warrant Price in effect immediately prior to such adjustment by the number of
shares purchasable pursuant hereto immediately prior to such adjustment and
dividing the product thereof by the Warrant Price resulting from such
adjustment.
SECTION 5. Adjustment of Warrant Price. The Warrant Price shall be subject
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to adjustment from time to time as follows: (i) If, at any time during the Term
of this Warrant, the number of shares of Common Stock outstanding is increased
by a stock dividend payable in shares of Common Stock or by a subdivision or
split-up of shares of Common Stock, then, following the record date fixed for
the determination of holders of Common Stock entitled to
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receive such stock dividend, subdivision or split-up, the Warrant Price shall be
appropriately decreased so that the number of shares of Common Stock issuable
upon the exercise hereof shall be increased in proportion to such increase in
outstanding shares.
(ii) If, at any time during the Term of this Warrant, the number of shares
of Common Stock outstanding is decreased by a combination of the outstanding
shares of Common Stock, then, following the record date for such combination,
the Warrant Price shall appropriately increase so that the number of shares of
Common Stock issuable upon the exercise hereof shall be decreased in proportion
to such decrease in outstanding shares.
(iii) All calculations under this Section 5 shall be made to the nearest
cent or to the nearest one-tenth (1/10) of a share, as the case may be.
(iv) The Current Market Price at any date of one share of Common Stock
shall be deemed to be the average of the daily closing prices for the 15
consecutive business days ending on the third business day before the day in
question (as adjusted for any stock dividend, split, combination or
reclassification that took effect during such 15 business day period). The
closing price for each day shall be the last reported sales price or, in case no
such reported sales took place on such day, the average of the last reported bid
and asked prices, in either case on the principal national securities exchange
on which the Common Stock is listed or admitted to trading or as reported by
Nasdaq (or if the Common Stock is not at the time listed or admitted for trading
on any such exchange or if prices of the Common Stock are not reported by Nasdaq
then such price shall be equal to the average of the last reported bid and asked
prices on such day as reported by The National Quotation Bureau Incorporated or
any similar reputable quotation and reporting service, if such quotation is not
reported by The National Quotation Bureau Incorporated); provided, however, that
if the Common Stock is not traded in such manner that the quotations referred to
in this clause (v) are available for the period required hereunder, the Current
Market Price shall be determined in good faith by the Board of Directors of the
Company or, if such determination cannot be made, by a nationally recognized
independent investment banking firm selected by the Board of Directors of the
Company (or if such selection cannot be made, by a nationally recognized
independent investment banking firm selected by the American Arbitration
Association in accordance with its rules).
(v) Whenever the Warrant Price shall be adjusted as provided in Section
5, the Company shall prepare a statement showing the facts requiring such
adjustment and the Warrant Price that shall be in effect after such adjustment.
The Company shall cause a copy of such statement to be sent by mail, first class
postage prepaid, to each Holder of this Warrant at its, his or her address
appearing on the Company's records. Where appropriate, such copy may be given in
advance and may be included as part of the notice required to be mailed under
the provisions of subsection (viii) of this Section 5.
(vi) Adjustments made pursuant to clauses (i) and (ii) above shall be made
on the date such dividend, subdivision, split-up, combination or distribution,
as the case may be, is made, and shall become effective at the opening of
business on the business day next
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following the record date for the determination of stockholders entitled to such
dividend, subdivision, split-up, combination or distribution.
(vii) In the event the Company shall propose to take any action of the
types described in clauses (i) or (ii) of this Section 5, the Company shall
forward, at the same time and in the same manner, to the Holder of this Warrant
such notice, if any, which the Company shall give to the holders of Common Stock
of the Company.
(viii) In any case in which the provisions of this Section 5 shall require
that an adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event issuing to the
Holder of all or any part of this Warrant which is exercised after such record
date and before the occurrence of such event the additional shares of capital
stock issuable upon such exercise by reason of the adjustment required by such
event over and above the shares of capital stock issuable upon such exercise
before giving effect to such adjustment exercise; provided, however, that the
Company shall deliver to such Holder a due bill or other appropriate instrument
evidencing such Holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
SECTION 6. Ownership.
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6.1. Ownership of This Warrant. The Company may deem and treat the
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person in whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary until presentation of this Warrant for registration of transfer
as provided in this Section 6.
6.2. Transfer and Replacement. This Warrant and all rights hereunder
------------------------
are transferable in whole or in part upon the books of the Company by the Holder
hereof in person or by duly authorized attorney, and a new Warrant or Warrants,
of the same tenor as this Warrant but registered in the name of the transferee
or transferees (and in the name of the Holder, if a partial transfer is
effected) shall be made and delivered by the Company upon surrender of this
Warrant duly endorsed, at the office of the Company referred to in Section 13
hereof. In the event of any purported transfer of this Warrant not in accordance
with the terms hereof, the Company shall not be required (i) to transfer on its
books any of the rights to acquire shares of Common Stock or Common Stock
issuable upon the exercise of such rights, or (ii) to treat as owner of such
rights to acquire shares of Common Stock or Common Stock issuable upon the
exercise of such rights. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft or destruction, and, in such case, of
indemnity or security reasonably satisfactory to it, and upon surrender of this
Warrant if mutilated, the Company will make and deliver a new Warrant of like
tenor, in lieu of this Warrant; provided that if the Holder hereof is an
instrumentality of a state or local government or an institutional holder or a
nominee for such an instrumentality or institutional holder an irrevocable
agreement of indemnity by such Holder shall be sufficient for all purposes of
this Section 6, and no evidence of loss or theft or destruction shall be
necessary. This Warrant shall be
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promptly cancelled by the Company upon the surrender hereof in connection with
any transfer or replacement. Except as otherwise provided above, in the case of
the loss, theft or destruction of a Warrant, the Company shall pay all expenses,
taxes (not including taxes on or measured by the net income or capital gains of
the Holder) and other charges payable in connection with any transfer or
replacement of this Warrant, other than stock transfer taxes (if any) payable in
connection with a transfer of this Warrant, which shall be payable by the
Holder. Notwithstanding anything to the contrary herein, ▇▇▇▇▇▇ will not
transfer this Warrant and the rights hereunder except in compliance with federal
and state securities laws.
SECTION 7. Mergers, Consolidation, Sales. In the case of any proposed
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consolidation or merger of the Company with another entity, or the proposed sale
of all or substantially all of its assets to another person or entity, or any
proposed reorganization or reclassification of the capital stock of the Company,
then, as a condition of such consolidation, merger, sale, reorganization or
reclassification, lawful and adequate provision shall be made whereby the Holder
of this Warrant shall thereafter have the right to receive upon the basis and
upon the terms and conditions specified herein, in lieu of the shares of the
Common Stock of the Company immediately theretofore purchasable hereunder, such
shares of stock, securities or assets as may (by virtue of such consolidation,
merger, sale, reorganization or reclassification) be issued or payable with
respect to or in exchange for the number of shares of such Common Stock
purchasable hereunder immediately before such consolidation, merger, sale,
reorganization or reclassification. In any such case appropriate provision shall
be made with respect to the rights and interests of the Holder of this Warrant
to the end that the provisions hereof shall thereafter be applicable as nearly
as may be, in relation to any shares of stock, securities or assets thereafter
deliverable upon the exercise of this Warrant.
SECTION 8. Notice of Dissolution or Liquidation. In case of any
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distribution of the assets of the Company in dissolution or liquidation (except
under circumstances when the foregoing Section 7 shall be applicable), the
Company shall give notice thereof to the Holder hereof and shall make no
distribution to shareholders until the expiration of twenty (20) days from the
date of mailing of the aforesaid notice and, in any case, the Holder hereof may
exercise this Warrant within twenty (20) days from the date of the giving of
such notice, and all rights herein granted not so exercised within such
thirty-day period shall thereafter become null and void.
SECTION 9. Notice of Extraordinary Dividends. If the Board of Directors of
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the Company shall declare any dividend or other distribution on its Common Stock
except out of earned surplus or by way of a stock dividend payable in shares of
its Common Stock, the Company shall mail notice thereof to the Holder hereof not
less than twenty (20) days prior to the record date fixed for determining
shareholders entitled to participate in such dividend or other distribution, and
the Holder hereof shall not participate in such dividend or other distribution
unless this Warrant is exercised prior to such record date. The provisions of
this Section 9 shall not apply to distributions made in connection with
transactions covered by Section 7.
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SECTION 10. Fractional Shares. Fractional shares shall not be issued upon
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the exercise of this Warrant but in any case where the Holder would, except for
the provisions of this Section 10, be entitled under the terms hereof to receive
a fractional share upon the complete exercise of this Warrant, the Company
shall, upon the exercise of this Warrant for the largest number of whole shares
then called for, pay a sum in cash equal to the excess of the Current Market
Price over the Warrant Price for such fractional share.
SECTION 11. Special Arrangements of the Company. The Company covenants and
-----------------------------------
agrees that during the Term of this Warrant, unless otherwise approved by the
Holder of this Warrant:
11.1. Will Reserve Shares. The Company will reserve and set apart and
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have available for issuance at all times, free from preemptive or other
preferential rights, the number of shares of authorized but unissued Common
Stock deliverable upon the exercise of this Warrant.
11.2. Will Not Amend Certificate. The Company will not amend its
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Certificate of Incorporation to eliminate as an authorized class of capital
stock that class denominated as "Common Stock" on the date hereof.
11.3. Will Bind Successors. This Warrant shall be binding upon any
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corporation or other person or entity succeeding to the Company by merger,
consolidation or acquisition of all or substantially all of the Company's
assets.
SECTION 12. Representations and Covenants of the Holder. This Warrant has
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been entered into by the Company in reliance upon the following representations
and covenants of the Holder:
(a) Investment Purpose. The right to acquire Common Stock or the
Common Stock issuable upon exercise of the Holder's rights contained herein will
be acquired for investment and not with a view to the sale or distribution of
any part thereof, and the Holder has no present intention of selling or engaging
in any public distribution of the same except pursuant to a registration or
exemption.
(b) Private Issue. The Holder understands (i) that the Common Stock
issuable upon exercise of this Warrant is not registered under the Securities
Act or qualified under applicable state securities laws on the ground that the
issuance contemplated by this Warrant will be exempt from registration and
qualifications requirements, and (ii) that the Company's reliance on such
exemption is predicated on the representations set forth in this Section 12.
(c) Disposition of ▇▇▇▇▇▇'s Rights. In no event will the Holder make
a disposition of any of its rights to acquire Common Stock or Common Stock
issuable upon exercise of such rights unless and until (i) it shall have
notified the Company of the proposed disposition, and (ii) if requested by the
Company, it shall have furnished the Company with an opinion of counsel (which
counsel may either be inside or outside counsel to the Warrantholder)
satisfactory to the Company and its counsel to the effect that (a) appropriate
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action necessary for compliance with the Securities Act has been taken, or (b)
an exemption from the registration requirements of the Securities Act is
available. Notwithstanding the foregoing, the restrictions imposed upon the
transferability of any of its rights to acquire Common Stock or Common Stock
issuable on the exercise of such rights do not apply to transfers from the
beneficial owner of any of the aforementioned securities to its nominee or from
such nominee to its beneficial owner, and shall terminate as to any particular
share of Common Stock when (1) such security shall have been effectively
registered under the Securities Act and sold by the holder thereof in accordance
with such registration or (2) such security may be sold without registration in
compliance with Rule 144 under the Securities Act, or (3) a letter shall have
been issued to the Holder at the request by the staff of the Securities and
Exchange Commission or a ruling shall have been issued to the Holder at its
request by such Commission stating that no action shall be recommended by such
staff or taken by such commission, as the case may be, if such security is
transferred without registration under the Securities Act in accordance with the
conditions set forth in such letter or ruling and such letter or ruling
specifies that no subsequent restrictions on transfer are required. Whenever the
restrictions imposed hereunder shall terminate as hereinabove provided the
Holder or holder of a share of Common Stock then outstanding as to which such
restrictions have terminated shall be entitled to receive from the Company,
without expense to such holder, one or more new certificates for the Warrant or
for such shares of Common Stock not bearing any restrictive legend.
(d) Financial Risk. The Holder has such knowledge and experience in
financial and business matters and in investing in companies similar to the
Company as to be capable of evaluating the merits and risk of its investment,
and has the ability to bear the economic risks of its investment.
(e) Authority. The Holder has full power and authority to enter into
and to perform this Agreement in accordance with its terms. The Holder has not
been organized, reorganized or recapitalized specifically for the purpose of
investing in the Company.
(f) Risk of No Registration. The Holder understands that if the
Company does not register with the Securities and Exchange Commission pursuant
to Section 12 of the Securities Act, or file reports pursuant to Section 15(d)
of the Securities Exchange Act of 1934 ' or if a registration statement covering
the securities under the Securities Act is not in effect when it desires to sell
(i) the rights to purchase Common Stock pursuant to this Warrant, or (ii) the
Common Stock issuable upon exercise of the right to purchase, it may be required
to hold such securities for an indefinite period. The Holder also understands
that any sale of its rights to purchase Common Stock or Common Stock which may
be made by it in reliance upon Rule 144 under the Securities Act may be made
only in accordance with the terms and conditions of that Rule.
SECTION 13. Notices. Any notice or other document required or permitted to
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be given or delivered to the Holder shall be delivered at, or sent by certified
or registered mail to, the Holder at Transamerica Technology Finance Division,
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant Vice
President, Lease Administration, with a copy to
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the Lender at Riverway II, West Office Tower, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department or to such other address as shall
have been furnished to the Company in writing by the Holder. Any notice or other
document required or permitted to be given or delivered to the Company shall be
delivered at, or sent by certified or registered mail to, the Company at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President,
Finance with a copy to ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq. or to such other address as shall have been
furnished in writing to the Holder by the Company. Any notice so addressed and
mailed by registered or certified mail shall be deemed to be given when so
mailed. Any notice so addressed and otherwise delivered shall be deemed to be
given when actually received by the addressee.
SECTION 14. No Rights as Stockholder; Limitation of Liability. This Warrant
-------------------------------------------------
shall not entitle the Holder to any of the rights of a shareholder of the
Company except upon exercise in accordance with the terms hereof. No provision
hereof, in the absence of affirmative action by the Holder to purchase shares of
Common Stock, and no mere enumeration herein of the rights or privileges of the
Holder, shall give rise to any liability of the Holder for the Warrant Price
hereunder or as a shareholder of the Company, whether such liability is asserted
by the Company or by creditors of the Company.
SECTION 15. Law Governing. THE VALIDITY, INTERPRETATION, AND ENFORCEMENT OF
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THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
SECTION 16. Miscellaneous. This Warrant and any provision hereof may be
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changed, waived, discharged or terminated only by an instrument in writing
signed by the Company and the Holder (or any respective successor in interest
thereof). The headings in this Warrant are for purposes of reference only and
shall not affect the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its
duly authorized officer this 15/th/ day of November, 1999.
ONTOGENY, INC.
[CORPORATE SEAL]
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President, Finance & CFO
TRANSAMERICA BUSINESS
CREDIT CORPORATION
By:____________________________
Name:
Title:
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FORM OF NOTICE OF EXERCISE
[To be signed only upon exercise of the Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO EXERCISE THE WITHIN WARRANT
The undersigned hereby exercises the right to purchase _____ shares of
Common Stock which the undersigned is entitled to purchase by the terms of the
within Warrant according to the conditions thereof, and herewith
[check one]
[_] makes payment of $_______ therefor; or
[_] directs the Company to issue ____ shares, and
to withhold ____ shares in lieu of payment of
the Warrant Price, as described in Section 2.1
of the Warrant.
All shares to be issued pursuant hereto shall be issued in the name of and the
initial address of such person to be entered on the books of the Company shall
be:
The shares are to be issued in certificates of the following denominations:
The Holder confirms and acknowledges the investment representations made in
Section 12 of the Warrant.
____________________________________
[Type Name of Holder]
By:
____________________________________
Title:
____________________________________
Dated: __________________________
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FORM OF ASSIGNMENT
(ENTIRE)
(To be signed only upon transfer of entire Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED ___________________________________ hereby sells,
assigns and transfers unto___________________________ all rights of the
undersigned under and pursuant to the within Warrant, and the undersigned does
hereby irrevocably constitute and appoint _________________________________
Attorney to transfer the said Warrant on the books of the Company, with fall
power of substitution.
____________________________________
[Type Name of Holder]
By:
____________________________________
Title:
____________________________________
Dated: _____________________________
NOTICE
The signature to the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
Acknowledged and accepted:
___________________________________
[Type name of assignee]
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FORM OF ASSIGNMENT
(PARTIAL)
[To be signed only upon partial transfer of Warrant]
TO BE EXECUTED BY THE REGISTERED HOLDER
TO TRANSFER THE WITHIN WARRANT
FOR VALUE RECEIVED ___________________________________ hereby sells,
assigns and transfers unto _____________________________ (i) the rights of the
undersigned to purchase _______ shares of Common Stock under and pursuant to the
within Warrant, and (ii) on a non-exclusive basis, all other rights of the
undersigned under and pursuant to the within Warrant, it being understood that
the undersigned shall retain, severally (and not jointly) with the transferee(s)
named herein, all rights assigned on such non-exclusive basis. The undersigned
does hereby irrevocably constitute and appoint
____________________________ Attorney to transfer the said Warrant on the books
of the Company, with full power of substitution.
__________________________________
[Type Name of Holder]
By: ______________________________
Title: ___________________________
Dated: _____________________________
NOTICE
The signature to the foregoing Assignment must correspond to the name as
written upon the face of the within Warrant in every particular, without
alteration or enlargement or any change whatsoever.
Acknowledged and accepted:
___________________________________
[Type name of assignee)
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