EXHIBIT 10.2
This Warrant was issued on July 31, 1997, pursuant to an
exemption from registration under the Securities Act of
1933, as amended (the "1933 Act"). This Warrant and the
shares of Common Stock or other securities purchasable upon
the exercise hereof may not be offered, sold, assigned,
transferred or hypothecated except in compliance with the
1933 Act. The details of the steps required to be taken for
such compliance are contained in Section 5 of this Warrant.
STOCK PURCHASE WARRANT
Date of Issuance: July 31, 1997 Certificate No. W-US1
FOR VALUE RECEIVED, Seragen, Inc., a Delaware corporation (the
"Company"), hereby grants to United States Surgical Corporation, a Delaware
corporation (the "Registered Holder"), the right to purchase from the Company
Five Hundred Thousand (500,000) shares of Common Stock at an exercise price
equal to $.5625 per share (the "Exercise Price"). The Exercise Price and the
amount and kind of securities purchasable pursuant to the rights granted
hereunder may be subject to further adjustment pursuant to the provisions of
Section 3 of this Warrant.
SECTION 1. CERTAIN DEFINITIONS.
When used in this Warrant, the following terms, when capitalized,
shall have the meanings set forth below. Certain other terms are defined in
the text of this Warrant.
"Common Stock" means the common stock, par value $.01 per share,
of the Company.
"Company" means Seragen, Inc. and any other corporation or other
entity which shall succeed to or assume the obligations of the Company.
"Date of Issuance" means July 31, 1997.
"1933 Act" means the Securities Act of 1933, as amended from time
to time, and any successor law then in effect.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization or a government or any
department or agency thereof.
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SECTION 2. EXERCISE OF WARRANT.
2.01 Exercise Period. The Registered Holder may exercise, in
whole or in part, the purchase rights represented by this Warrant at any time
and from time to time during the period beginning on the Date of Issuance and
ending on August 1, 2002 (the "Exercise Period"). At the close of business on
the last day of the Exercise Period, all rights evidenced by this Warrant
shall cease, and this Warrant shall become void.
2.02 Exercise Procedure.
(a) This Warrant will be deemed to have been exercised when the
Company has received all of the following items (the "Exercise Time"):
(i) a completed Exercise Agreement, as described in
subsection 2.03 below, executed by the Person
exercising all or part of the purchase rights
represented by this Warrant (the "Purchaser");
(ii) this Warrant;
(iii) if this Warrant is not registered in the name of
the Purchaser, an Assignment or Assignments in the
form set forth in Exhibit II hereto evidencing the
assignment of this Warrant to the Purchaser, in
which case the Registered Holder shall have complied
with the provisions set forth in Section 5; and
(iv) payment of cash, by wire transfer or by certified or
official bank check payable to the order of the
Company, equal to the product of (A) the number of
shares of Common Stock designated by the holder in the
Exercise Agreement and (B) the Exercise Price then in
effect.
(b) Certificates for shares of Common Stock purchased upon
exercise of this Warrant will be delivered by the Company to the Purchaser as
soon as practicable after the date of the Exercise Time. Unless this Warrant
has expired or the entire Warrant has been exercised, the Company will prepare
a new warrant representing the rights formerly represented by this Warrant
which have not been exercised and will deliver such new warrant to the Person
designated for delivery in the Exercise Agreement.
(c) The shares of Common Stock issuable upon the exercise of
this Warrant will be deemed to have been issued to the Purchaser at the
Exercise Time, and the Purchaser will be deemed for all purposes to have
become the recordholder of such shares at the Exercise Time.
(d) The Company will not close its books with respect to the
transfer of this Warrant or of any share of Common Stock issued or issuable
upon the exercise of this Warrant in any manner which interferes with the
timely exercise of this Warrant. The Company will from time to time take all
such action as may be necessary to assure that the par value per share of the
unissued shares of Common Stock issuable upon exercise of this Warrant is at
all times equal to or less than the Exercise Price then in effect.
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2.03 Exercise Agreement. Upon any exercise of this Warrant, the
Exercise Agreement shall be executed substantially in the form set forth in
Exhibit I hereto. If the shares of Common Stock are not to be issued in the
name of the Person in whose name this Warrant is registered, the Exercise
Agreement shall state the name of the Person to whom the certificates for such
shares are to be issued, and if the number of shares to be issued does not
include all the shares purchasable hereunder, it shall state the name of the
Person to whom a new Warrant for the unexercised portion of the rights
hereunder is to be delivered, and in either such case the Registered Holder
shall have complied with the provisions set forth in Section 5. Such Exercise
Agreement shall be dated the actual date of the execution thereof.
2.04 Fractional Shares. If a fractional share would be issuable
upon exercise of all or a portion of this Warrant, the Company will deliver to
the Purchaser, as soon as practicable after the date of the Exercise Time, a
check payable to the Purchaser, in lieu of such fractional share, in an amount
equal to the difference between (i) the fair market price of such fractional
share as of the date of the Exercise Time, as determined in good faith by the
Company, and (ii) the Exercise Price with respect to such fractional share.
2.05 Payment of Taxes. The Company shall pay all documentary,
stamp or similar taxes and other government charges that may be imposed with
respect to the issuance or delivery of any shares of Common Stock upon the
exercise of this Warrant, unless the shares of Common Stock are to be
delivered to a purchaser other than the Registered Holder, in which case such
delivery will be made only upon payment by the Registered Holder or such
purchaser, as the case may be, of any such taxes or other charges. Any
documentary, stamp or similar taxes and other governmental charges imposed
with respect to the transfer of this Warrant shall be borne by the transferor
or transferee, as applicable, and payment of such taxes or other charges shall
be a condition to the effective transfer of this Warrant.
SECTION 3. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES.
3.01 Adjustments. The Exercise Price and the number of shares
purchasable upon exercise of this Warrant are subject to adjustment from time
to time as provided in this Section 3.
(a) If the Company shall issue shares of Common Stock as a stock
dividend or subdivide the number of outstanding shares of Common Stock into a
greater number of shares, then the number of shares of Common Stock issuable
upon exercise of this Warrant shall be proportionately increased. If the
Company shall combine the outstanding shares of Common Stock into a lesser
number of shares, then the number of shares of Common Stock issuable upon
exercise of this Warrant shall be proportionately reduced. In either such
event, the Exercise Price of this Warrant shall remain unchanged.
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(b) In case of any change in the Common Stock through merger,
consolidation, reclassification, reorganization, partial or complete
liquidation or change in the capital structure of the Company, then, as a
condition of the change in the capital structure of the Company, lawful and
adequate provision will be made so that the Registered Holder of this Warrant
will have the right thereafter to receive upon exercise of this Warrant the
kind and amount of shares of stock or other securities or property to which
such Registered Holder would have been entitled if, immediately prior to such
merger, consolidation, reclassification, reorganization, recapitalization or
other change in the capital structure, had the Registered Holder held the
number of shares of Common Stock obtainable upon the exercise of the Warrant.
In any such case, appropriate adjustments will be made in the application of
the provisions set forth herein with respect to the rights and interest
thereafter of the Registered Holder of this Warrant, to the end that the
provisions set forth herein will thereafter be applicable, as nearly as
reasonably may be, in relation to any shares of stock or other property
thereafter deliverable upon the exercise of this Warrant.
3.02 Notice Requirements. In case the Company:
(a) shall take a record of the holders of its Common Stock for
the purpose of entitling them to receive a dividend or any other distribution
in respect of the Common Stock (including cash);
(b) take a record of the holders of its Common Stock for the
purpose of entitling them to subscribe for or purchase any shares of stock of
any class or to receive any other rights;
(c) take a record of the holders of its Common Stock for the
purpose of any classification, reclassification or other reorganization of the
capital stock of the Company, consolidation or merger of the Company with or
into another corporation or conveyance of all or substantially all of the
assets of the Company; or
(d) take a record of the holders of its Common Stock for the
purpose of the voluntary or involuntary dissolution, liquidation or winding up
of the Company;
then, and in any such case, the Company shall mail to the Registered Holder of
this Warrant, at least 15 days prior thereto, a notice stating the date or
expected date on which a record is to be taken for the purpose of such
dividend, distribution or rights, or the date on which such classification,
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up is to take place, as the case may be.
Such notice shall also specify the date or expected date, if any is to be
fixed, on which said dividend, distribution or rights, or an exchange of
shares of Common Stock for securities or other property deliverable upon such
classification, reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidating or winding up, as the case may be, is
expected to occur. The failure to give such notice shall give the Registered
Holder of this Warrant who did not have actual notice thereof the right to
require the Company, or its successor, to treat this Warrant as having been
exercised prior to such record date, but shall not affect the validity of any
such proceeding or transaction.
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3.03 Delivery of Officer's Certificate. Whenever an adjustment
required by the provisions of this section 3 shall occur, the Company shall
forthwith deliver to the Registered Holder of this Warrant an officer's
certificate showing the adjustment or adjustments determined as therein
provided, setting forth in reasonable detail the facts requiring such
adjustment, and such other facts as shall be necessary to show the reason for
and the manner of computing such adjustment. Said certificate shall be
conclusive and shall be binding upon the Registered Holder unless contested by
the Registered Holder by written notice to the Company within ten days after
receipt of the certificate.
3.04 No Adjustment Under Certain Circumstances. No adjustment
of the Exercise Price shall be made unless adjustment would require an
increase or decrease of at least 5% of the Exercise Price; provided that any
adjustments that by reason of this Section 3.04 are not required to be made
shall be carried forward and shall be made at the time of and together with
the next subsequent adjustment, that together with any adjustments(s) so
carried forward, shall require an increase or decrease of at least 5% in the
Exercise Price then in effect.
SECTION 4. NO STOCKHOLDER RIGHTS.
This Warrant does not entitle the Registered Holder hereof to any
voting rights or other rights as a stockholder of the Company.
SECTION 5. COMPLIANCE WITH THE 1933 ACT; TRANSFERABILITY.
5.01 Compliance with the 1933 Act. The Registered Holder
acknowledges that neither this Warrant nor the shares of Common Stock issuable
upon exercise of this Warrant have been registered under the 1933 Act and
agrees that this Warrant may not be exercised by the registered holder hereof
unless (i) the shares of Common stock purchasable upon the exercise thereof
are registered under the 1933 Act, or the transaction in which the shares of
Common stock are to be issued is exempted from the application of the 1933
Act, and (ii) such shares of Common stock are registered or otherwise
qualified for sale under the securities laws of the State in which the
registered holder resides or an exemption from such registration or
qualification is available under such laws. The Registered Holder further
agrees not to offer, sell, hypothecate, transfer or otherwise dispose of this
Warrant or any shares of Common Stock issuable upon exercise of this Warrant
to any other person unless a registration statement covering the offer, sale,
hypothecation, transfer or other disposition shall then be effective under the
1933 Act and all applicable State securities laws, or there shall have been
delivered to the Company an opinion of counsel reasonably acceptable to the
Company to the effect that such offer, sale, hypothecation, transfer or other
disposition may be effected without compliance with the registration and
prospectus delivery requirements of the 1933 Act and all applicable State
securities laws. Each certificate evidencing shares of Common Stock issued
upon exercise of this Warrant shall bear a legend to the foregoing effect, and
the Registered Holder and any other Person to whom, in accordance with
subsection 2.03, a certificate for shares or a new Warrant is to be delivered
shall be required, at or before receipt of such certificate or Warrant, to
execute and deliver to the Company a letter to the effect that it is acquiring
the shares evidenced by such certificate or such Warrant for its own account
and not with a view to, or for resale in connection with, any distribution
thereof in violation of the 1933 Act and all applicable State securities laws.
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5.02 Transferability. Subject to the transfer conditions set
forth in Section 5.01, this Warrant and all rights hereunder are transferable,
in whole or in part, upon surrender by the Registered Holder of this Warrant
with a properly executed Assignment (in the form of Exhibit II hereof) at the
principal office of the Company.
SECTION 6. WARRANT EXCHANGEABLE FOR DIFFERENT DENOMINATIONS.
This Warrant is exchangeable, upon the surrender hereof by the
Registered Holder, at the principal office of the Company, for a new Warrant
certificate or certificates of like kind representing in the aggregate the
purchase rights hereunder, and each of such new Warrant certificate will
represent such portion of such rights as is designated by the Registered
Holder at the time of such surrender. The date the Company initially issues
this Warrant will be deemed to be the "Date of Issuance" hereof regardless of
the number of times new certificates representing the unexpired and
unexercised rights formerly represented by this Warrant shall be issued. All
Warrants representing portions of the rights hereunder are referred to herein
as the "Warrants."
SECTION 7. REPLACEMENT.
Upon receipt of evidence reasonably satisfactory to the Company
(an affidavit of the Registered Holder being satisfactory) of the ownership
and the loss, theft, destruction or mutilation of this Warrant, the Company
will (at its expense) execute and deliver in lieu of such certificate a new
Warrant certificate of like kind representing the same rights represented by
such lost, stolen, destroyed or mutilated certificate and dated the date of
such lost, stolen, destroyed or mutilated certificate. The Company may
require as a condition of the issuance of such replacement certificate,
indemnification (which upon the reasonable request of the Company shall be
secured by a bond or other adequate security) sufficient to protect it against
any claim made against the Company on account of such lost, stolen, destroyed
or mutilated certificate.
SECTION 8. NOTICES.
Except as otherwise expressly provided herein, all notices
referred to in this Warrant will be in writing and delivered either by hand
or sent by registered or certified mail, return receipt requested, a
nationally-recognized overnight delivery service or facsimile transmission
(a) if to the Company, at its principal executive offices and (b) if to the
Registered Holder of this Warrant, at the Registered Holder's address as it
appears in the records of the Company (unless otherwise indicated by any such
holder). Any notice, request or communication hereunder shall be deemed to
have been given (i) if by hand delivery, when delivered, and (ii) if by
registered or certified mail, overnight delivery or facsimile transmission,
when received. The Company shall be entitled to treat the Registered Holder of
this Warrant as the owner thereof for all purposes and shall not be bound to
recognize any equitable or other claim to, or interest in, this Warrant.
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SECTION 9. AMENDMENT AND WAIVER.
The provisions of this Warrant may be amended and the Company may
take any action herein prohibited, or omit to perform any act herein required
to be performed by it, only if the Company has obtained the written consent of
the holder of this Warrant.
SECTION 10. DESCRIPTIVE HEADINGS; GOVERNING LAW.
The descriptive headings of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. The
construction, validity and interpretation of this Warrant will be governed
by the internal law, and not the law of conflicts, of the State of Maryland.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by its duly authorized officers under its corporate seal
and to be dated the Date of Issuance hereof.
Attest: SERAGEN, INC.
By:/s/ By:/s/▇▇▇▇ ▇. ▇▇▇▇▇
_______________________ _______________________
Secretary ▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
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EXHIBIT I
EXERCISE AGREEMENT
TO: SERAGEN, INC.
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. W-__), hereby irrevocably elects to exercise
the right of purchase ______ of the shares of Common Stock represented by such
Warrant, and tenders herewith payment in full therefor at the Exercise Price
per share as provided for in the Warrant.
If such shares shall not be all the shares purchasable under the
Warrant, the replacement warrant for the balance of the remaining shares
purchasable under the Warrant shall be registered in the name of the
Registered Holder or in the name of the assignee and to the address stated
below.
Name of Assignee:__________________________
Address of Assignee:_______________________
UNITED STATES SURGICAL CORPORATION
By:/s/
________________________
Name:
Title:
ATTEST:________________________
Date: ______________, ____
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EXHIBIT II
ASSIGNMENT
FOR VALUE RECEIVED, __________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (Certificate No. W-___) with respect to the number of shares of Common
Stock of Seragen, Inc. covered thereby set forth below, unto:
Name of Assignee Address No. of Shares
UNITED STATES SURGICAL CORPORATION
By:/s/
________________________________
Name:
Title:
ATTEST:________________________
Date: ______________, ____
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