FORM OF WARRANT GENELABS TECHNOLOGIES, INC. WARRANT TO PURCHASE COMMON STOCK
EXHIBIT
4.05
FORM
OF WARRANT
GENELABS
TECHNOLOGIES, INC.
WARRANT
TO PURCHASE COMMON STOCK
|
No.
__-_______
|
_______,
200__
|
|
VOID
AFTER ______,
200__
|
|
THIS
CERTIFIES THAT,
for
value received, [PURCHASER],
with
its principal office at [ADDRESS],
or
assigns (the "Holder"), is entitled to subscribe for and purchase at the
Exercise Price (defined below) from GENELABS
TECHNOLOGIES, INC.,
a
California
corporation,
with its principal office at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(the
"Company") _____ shares of the Common Stock of the Company as provided herein
(the "Common Stock").
1. DEFINITIONS.
As
used
herein, the following terms shall have the following respective
meanings:
(a) "Exercise
Period" shall mean the period commencing with the date hereof and
ending ____
years from the date hereof, unless sooner terminated as provided
below.
(b) "Exercise
Price" shall mean $____ per share, subject to adjustment pursuant to
Section 5 below.
(c) "Exercise
Shares" shall mean the shares of the Company’s Common Stock issuable upon
exercise of this Warrant.
2. EXERCISE
OF WARRANT. The
rights represented by this Warrant may be exercised in whole or in part at
any
time during the Exercise Period, by delivery of the following to the Company
at
its address set forth above (or at such other address as it may designate by
notice in writing to the Holder):
(a) An
executed Notice of Exercise in the form attached hereto;
(b) Payment
of the Exercise Price either (i) in cash or by check, or (ii) by cancellation
of
indebtedness; and
(c) This
Warrant.
Upon
the
exercise of the rights represented by this Warrant, a certificate or
certificates for the Exercise Shares so purchased, registered in the name of
the
Holder or persons affiliated with the Holder, if the Holder so designates,
shall
be issued and delivered to the Holder within a reasonable time after the rights
represented by this Warrant shall have been so exercised.
1
The
person in whose name any certificate or certificates for Exercise Shares are
to
be issued upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the date on which this Warrant was
surrendered and payment of the Exercise Price was made, irrespective of the
date
of delivery of such certificate or certificates, 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.
2.1 Net
Exercise.
Notwithstanding any provisions herein to the contrary, if the fair market value
of one share of the Company’s Common Stock is greater than the Exercise Price
(at the date of calculation as set forth below), in lieu of exercising this
Warrant by payment of cash, the Holder may elect to receive shares equal to
the
value (as determined below) of this Warrant (or the portion thereof being
canceled) by surrender of this Warrant at the principal office of the Company
together with the properly endorsed Notice of Exercise in which event the
Company shall issue to the Holder a number of shares of Common Stock computed
using the following formula:
X
=
Y
(A-B)
A
| Where |
X
=
|
the
number of shares of Common Stock to be issued to the
Holder
|
|
Y
=
|
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 canceled (at the date of such
calculation)
|
|
A
=
|
the
fair market value of one share of the Company’s Common Stock (at the date
of such calculation)
|
|
B
=
|
Exercise
Price (as adjusted to the date of such
calculation)
|
For
purposes of the above calculation, the fair market value of one share of Common
Stock shall be determined by the Company’s Board of Directors in good
faith.
3. COVENANTS
OF THE COMPANY.
3.1 Covenants
as to Exercise Shares.
The
Company covenants and agrees that all Exercise Shares that may be issued upon
the exercise of the rights represented by this Warrant will, upon issuance,
be
validly issued and outstanding, fully paid and nonassessable, and free from
all
taxes, liens and charges with respect to the issuance thereof. The Company
further covenants and agrees that the Company will at all times during the
Exercise Period, have authorized and reserved, free from preemptive rights,
a
sufficient number of shares of its Common Stock to provide for the exercise
of
the rights represented by this Warrant. If at any time during the Exercise
Period the number of authorized but unissued shares of Common Stock shall not
be
sufficient to permit exercise of this Warrant, the Company will take such
corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares
as
shall be sufficient for such purposes.
2
3.2 No
Impairment.
Except
and to the extent as waived or consented to by the Holder, the Company will
not,
by amendment of its Articles of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms 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 Warrant and in the taking of all such action as may
be
necessary or appropriate in order to protect the exercise rights of the Holder
against impairment.
3.3 Notices
of Record Date.
In the
event of any taking by the Company of a record of the holders of any class
of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend (other than a cash dividend which is the same as cash
dividends paid in previous quarters) or other distribution, the Company shall
mail to the Holder, at least ten (10) days prior to the date specified herein,
a
notice specifying the date on which any such record is to be taken for the
purpose of such dividend or distribution.
4. REPRESENTATIONS
OF HOLDER.
4.1 Acquisition
of Warrant for Personal Account.
The
Holder represents and warrants that it is acquiring the Warrant solely for
its
account for investment and not with a view to or for sale or distribution of
said Warrant or any part thereof. The Holder also represents that the entire
legal and beneficial interests of the Warrant and Exercise Shares the Holder
is
acquiring is being acquired for, and will be held for, its account
only.
5. ADJUSTMENT
OF EXERCISE PRICE. In
the
event of changes in the outstanding Common Stock of the Company by reason of
stock dividends, split-ups, recapitalizations, reclassifications, combinations
or exchanges of shares, separations, reorganizations, liquidations, or the
like,
the number and class of shares available under the Warrant in the aggregate
and
the Exercise Price shall be correspondingly adjusted to give the Holder of
the
Warrant, on exercise for the same aggregate Exercise Price, the total number,
class, and kind of shares as the Holder would have owned had the Warrant been
exercised prior to the event and had the Holder continued to hold such shares
until after the event requiring adjustment; provided, however, that such
adjustment shall not be made with respect to, and this Warrant shall terminate
if not exercised prior to, the events set forth in Section 7 below. The
form of this Warrant need not be changed because of any adjustment in the number
of Exercise Shares subject to this Warrant.
6. FRACTIONAL
SHARES. No
fractional shares shall be issued upon the exercise of this Warrant as a
consequence of any adjustment pursuant hereto. All Exercise Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for purposes
of determining whether the exercise would result in the issuance of any
fractional share. If, after aggregation, the exercise would result in the
issuance of a fractional share, the Company shall, in lieu of issuance of any
fractional share, pay the Holder otherwise entitled to such fraction a sum
in
cash equal to the product resulting from multiplying the then current fair
market value of an Exercise Share by such fraction.
7. EARLY
TERMINATION. In
the
event of, at any time during the Exercise Period, any capital reorganization,
or
any reclassification of the capital stock of the Company (other than a change
in
par value or from par value to no par value or no par value to par value or
as a
result of a stock dividend or subdivision, split-up or combination of shares),
or the consolidation or merger of the Company with or into another corporation
(other than a merger solely to effect a reincorporation of the Company into
another state), or the sale or other disposition of all or substantially all
the
properties and assets of the Company in its entirety to any other person, this
Warrant shall terminate unless exercised immediately upon the occurrence of
such
reorganization, reclassification, consolidation, merger or sale or other
disposition of the Company’s assets.
3
8. NO
SHAREHOLDER RIGHTS. This
Warrant in and of itself shall not entitle the Holder to any voting rights
or
other rights as a stockholder of the Company.
9. TRANSFER
OF WARRANT. This
Warrant and all rights hereunder are transferable, by the Holder in person
or by
duly authorized attorney, upon delivery of this Warrant and the form of
assignment attached hereto to any transferee designated by ▇▇▇▇▇▇ only with
the
prior written consent of the Company. If requested, the transferee shall sign
an
investment letter in form and substance satisfactory to the
Company.
10. LOST,
STOLEN, MUTILATED OR DESTROYED WARRANT. If
this
Warrant is lost, stolen, mutilated or destroyed, the Company may, on such terms
as to indemnity or otherwise as it may reasonably impose (which shall, in the
case of a mutilated Warrant, include the surrender thereof), issue a new Warrant
of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen, mutilated
or destroyed Warrant shall be at any time enforceable by anyone.
11. NOTICES,
ETC. All
notices and other communications required or permitted hereunder shall be in
writing and shall be sent by facsimile telex, telegram, express mail or other
form of rapid communications, if possible, and if not then such notice or
communication shall be mailed by first-class mail, postage prepaid, addressed
in
each case to the party entitled thereto at the following addresses: (a) if
to
the Company, to Genelabs Technologies, Inc., Attention: [NAME
OF CONTACT PERSON],
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
and (b)
if to the Holder, [ADDRESS],
or at
such other address as one party may furnish to the other in writing. Notice
shall be deemed effective on the date dispatched if by personal delivery,
facsimile, telex or telegram, two days after mailing if by express mail, or
three days after mailing if by first-class mail.
12. ACCEPTANCE.
Receipt
of this Warrant by the Holder shall constitute acceptance of and agreement
to
all of the terms and conditions contained herein.
13. GOVERNING
LAW. This
Warrant and all rights, obligations and liabilities hereunder shall be governed
by the laws of the State of California.
4
IN
WITNESS WHEREOF,
the
Company has caused this Warrant to be executed by its duly authorized officer
as
of __________, 200__.
[COMPANY]
By:____________________________________
Title:___________________________________
5
NOTICE
OF EXERCISE
TO: GENELABS
TECHNOLOGIES, INC.
|
(1)
|
o
|
The undersigned hereby elects to purchase ________ shares of Common Stock of Genelabs Technologies, Inc. (the "Company") pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any. |
|
o
|
The undersigned hereby elects to purchase ________ shares of Common Stock of Genelabs Technologies, Inc. (the "Company") pursuant to the terms of the attached Warrant, and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any. |
|
(2)
|
Please
issue a certificate or certificates representing said shares of Common
Stock in the name of the undersigned or in such other name as is
specified
below:
|
|
________________________
(Name)
________________________
________________________
(Address)
|
(3)
|
o
|
[If
a registration statement covering the exercise of the shares of Common
Stock is not then effective and the exercise is being effected other
than
pursuant to Section 2.1 of the Warrant, the undersigned represents
that
(i) the aforesaid shares of Common Stock are being acquired for the
account of the undersigned for investment and not with a view to,
or for
resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling
such
shares; (ii) the undersigned is aware of the Company’s business affairs
and financial condition and has acquired sufficient information about
the
Company to reach an informed and knowledgeable decision regarding
its
investment in the Company; (iii) the undersigned is experienced in
making
investments of this type and has such knowledge and background in
financial and business matters that the undersigned is capable of
evaluating the merits and risks of this investment and protecting
the
undersigned’s own interests; (iv) the undersigned understands that the
shares of Common Stock issuable upon exercise of this Warrant have
not
been registered under the Securities Act of 1933, as amended (the
"Securities Act"), by reason of a specific exemption from the registration
provisions of the Securities Act, which exemption depends upon, among
other things, the bona fide nature of the investment intent as expressed
herein, and, because such securities have not been registered under
the
Securities Act, they must be held indefinitely unless subsequently
registered under the Securities Act or an exemption from such registration
is available; (v) the undersigned is aware that the aforesaid shares
of
Common Stock may not be sold pursuant to Rule 144 adopted under the
Securities Act unless certain conditions are met and until the undersigned
has held the shares for the number of years prescribed by Rule 144,
that
among the conditions for use of the Rule is the availability of current
information to the public about the Company and the Company has not
made
such information available and has no present plans to do so; and
(vi) the
undersigned agrees not to make any disposition of all or any part
of the
aforesaid shares of Common Stock unless and until there is then in
effect
a registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with said
registration statement, or the undersigned has provided the Company
with
an opinion of counsel satisfactory to the Company, stating that such
registration is not required.]
|
| |
|
|
|
(Signature)
|
||
|
(Date)
|
|
|
|
(Print
name)
|
||
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information.
Do not use this form to purchase shares.)
FOR
VALUE RECEIVED,
the
foregoing Warrant and all rights evidenced thereby are hereby assigned
to
|
Name:
|
|||
|
(Please
Print)
|
|||
|
Address:
|
|||
|
(Please
Print)
|
|||
|
Dated:
|
,
20___
|
||
|
Holder’s
Signature:
|
|||
|
Holder’s
Address:
|
|||
NOTE:
The
signature to this Assignment Form must correspond with the name as it appears
on
the face of the Warrant, without alteration or enlargement or any change
whatever. Officers of corporations and those acting in a fiduciary or other
representative capacity should file proper evidence of authority to assign
the
foregoing Warrant.