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EXHIBIT 10.19
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER
SUCH ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED OR UNLESS SOLD PURSUANT TO AN
EXEMPTION TO SUCH ACT. SEE ALSO SECTIONS 3,6 AND 8.1 HEREOF.
No. ______ Void after
April 15, 2004
WARRANT TO PURCHASE SHARES
OF COMMON STOCK
of
IRORI
THIS CERTIFIES THAT, for value received, ____________________, together
with its successors and assigns (the "Holder") is entitled to subscribe for and
purchase, on the terms hereof, a calculated number of shares of common stock
("Common Stock") of IRORI, a California corporation (the "Company"), subject to
adjustment as provided herein.
This Warrant is subject to the following terms and conditions:
1. Convertible Promissory Note and Warrant Purchase Agreement. This
Warrant is one of a series of Warrants issued pursuant to that certain
Convertible Promissory Note and Warrant Purchase Agreement dated April 15, 1998
(the "Purchase Agreement") by and among the Company, the Holder and the other
holders of Warrants and convertible promissory notes issued in connection with
the Purchase Agreement. Pursuant to the Purchase Agreement, the Company also
issued the Holder that certain Convertible Promissory Note dated April 15, 1998
(the "Note").
2. Exercise of Warrant. The terms and conditions upon which this Warrant
may be exercised, and the Common Stock covered hereby (the "Warrant Stock") may
be purchased, are as follows:
2.1 Term. Subject to the terms hereof, this Warrant may be
exercised, in whole or in part, at any time; provided, however, that in no event
may this Warrant be exercised later than 5:00 p.m. (Pacific Time) on the
earliest of (A) the close of business on April 15, 2004, (B) (i) the closing of
the acquisition of the Company by another entity by means of a transaction
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or series of related transactions or (ii) the closing of the sale of all or
substantially all of the assets of the Company, unless the Company's
shareholders of record prior to such acquisition or sale shall hold at least
fifty percent (50%) of the voting power of the acquiring or surviving entity
immediately after such acquisition or sale, or (C) the initial underwritten
public offering of the Company's common stock (the "Common Stock") (the
"Exercise Period"). At least ten (10) days prior to the occurrence of an event
specified in (B) or (C) of this Section 2.1, the Company shall send to the
Holder notice of such event and that the Holder's rights under this Warrant
shall terminate upon the occurrence of such event; provided, that if the Company
sends such notice less than ten (10) days prior to the occurrence of such event,
the Holder's right to exercise this Warrant shall be extended for a period of
ten (10) days after the date of the notice, after which time the Holder's rights
under this Warrant shall terminate.
2.2 Number of Shares. This Warrant may be exercised for the
number of shares of Common Stock equal to the following:
(A/B) x .05 x C
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D
Where: A = the total number of elapsed days from April 15, 1998 to
the date (the "Note Termination Date") the Note is either
(i) converted or (ii) paid or prepaid in full pursuant to
the terms thereof (such number in no case to exceed 110)
[For purposes of this Section 2.2, if the Note Termination
Date has not occurred by the time this Warrant is exercised,
the date of exercise shall be deemed the Note Termination
Date]
B = 365/12
C = the original principal amount of the Note
*D = $7.20
* The parties hereto acknowledge that this in no way is an attempt to
identify the fair market value of shares of Common Stock, but is
rather an arbitrary assignment of value for the purposes of this
Warrant only.
2.3 Purchase Price. The per share purchase price for the shares of
Common Stock to be issued upon exercise of this Warrant shall be, subject to
adjustment as provided herein, $0.48. The parties hereto acknowledge that this
in no way is an attempt to identify the fair market value of shares of Common
Stock, but is rather an arbitrary assignment of value for the purposes of this
Warrant only.
2.4 Method of Exercise. The exercise of the purchase rights evidenced by
this Warrant shall be effected by (a) the surrender of the Warrant, together
with a duly executed copy of the form of a subscription attached hereto, to the
Company at its principal offices and (b) the delivery of the purchase price by
check or bank draft payable to the Company's order or by wire transfer to the
Company's account for the number of shares for which the purchase rights
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hereunder are being exercised or any other form of consideration approved by the
Company's Board of Directors. 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 herein
or at such later date as may be specified in the executed form of subscription,
and at such time the person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon such exercise as
provided herein shall be deemed to have become the holder or holders of record
thereof.
2.5 Net Issuance.
2.5.1 Right to Convert. In addition to and without limiting the
rights of the Holder under the terms of this Warrant, the Holder shall have the
right to convert this Warrant or any portion thereof (the "Conversion Right")
into Common Stock as provided in this Section 2.5 at any time or from time to
time during the Exercise Period.
Upon exercise of the Conversion Right with respect to a
particular number of shares subject to the Warrant (the "Converted Warrant
Shares"), the Company shall deliver to the Holder (without payment by the Holder
of any exercise price or any cash or other consideration) that number of shares
of fully paid and nonassessable Common Stock computed using the following
formula:
S = T (U - V)
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U
Where S = the number of shares of Common Stock to be delivered to the
Holder
T = the number of Converted Warrant Shares
U = the per share fair market value of the Common Stock
(after adjusting back out for any of the adjustments set
forth in Section 4 hereof) on the Conversion Date (as
defined below)
*V = $0.48.
* The parties hereto acknowledge that this in no way is an attempt to
identify the fair market value of shares of Common Stock, but is
rather an arbitrary assignment of value for the purposes of this
Warrant only.
The Conversion Right may only be exercised with respect to a whole number of
shares subject to the Warrant. No fractional shares shall be issuable upon
exercise of the Conversion Right, and if the number of shares to be issued
determined in accordance with the foregoing formula is other than a whole
number, the Company shall pay to the Holder an amount in cash equal to the fair
market value of the resulting fractional share on the Conversion Date (as
defined below). Shares issued pursuant to the Conversion Right shall be treated
as if they were issued upon the exercise of the Warrant.
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2.5.2 Method of Exercise. The Conversion Right may be
exercised by the Holder by the surrender of the Warrant at the principal office
of the Company together with a written statement specifying that the Holder
thereby intends to exercise the Conversion Right and indicating the total number
of shares under the Warrant that the Holder is exercising through the Conversion
Right. Such conversion shall be effective upon receipt by the Company of the
Warrant together with the aforesaid written statement, or on such later date as
is specified therein (the "Conversion Date"). Certificates for the shares
issuable upon exercise of the Conversion Right and, if applicable, a new warrant
evidencing the balance of the shares remaining subject to the Warrant, shall be
issued as of the Conversion Date and shall be delivered to the Holder promptly
following the Conversion Date.
2.5.3 Determination of Fair Market Value. For purposes of
this Section 2.5, fair market value of a share of Common Stock on the Conversion
Date shall mean the fair market value as determined by the Board of Directors of
the Company.
3. Limit on Rights of the Holder upon Exercise. The Holder acknowledges
and agrees that upon the exercise of this Warrant in full or in part, the
following provisions shall apply to the rights of the Holder as a holder of
Common Stock.
3.1 Market Stand-Off Agreement. During the period of duration
(not to exceed 180 days) specified by the Company and an underwriter of Common
Stock or other securities of the Company, following the effective date of a
registration statement of the Company filed under the Securities Act, as amended
(the "Act"), the Holder shall not, to the extent requested by the Company and
such underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to transferees or donees who agree
to be similarly bound) any securities of the Company held by it at any time
during such period except Common Stock included in such registration; provided,
however, that this Section 3.1 shall be applicable only to the first such
registration statement of the Company pursuant to which Common Stock (or other
securities) of the Company are to be sold on its behalf to the public in an
underwritten offering, and (b) all officers and directors of the Company enter
into similar agreements. In order to enforce the foregoing covenant, the Company
may impose stop-transfer instructions with respect to the securities of the
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
4. Adjustments to Conversion Price. The number of shares of Common Stock
(or any shares of stock or other securities which may be) issuable upon the
exercise of this Warrant and the exercise price hereunder shall be subject to
adjustment from time to time upon the happening of certain events, as follows:
4.1 Dividends, Distributions, Stock Splits or Combinations. If
the Company shall at any time or from time to time after the date hereof make or
issue, or fix a record date for the determination of shareholders entitled to
receive, a dividend or other distribution payable in additional shares of common
or preferred stock (as the case may be), then and in each such event the
exercise price hereunder then in effect shall be decreased as of the time of
such issuance or, in the event such a record date shall have been fixed, as of
the close of business on such record date, by multiplying the exercise price
hereunder then in effect by a fraction: (a) the numerator
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of which shall be the total number of shares of Common Stock (assuming the
conversion of all outstanding securities of the Company that are convertible
into Common Stock and the exercise of all options and warrants to purchase
Common Stock or securities that are convertible into Common Stock) issued and
outstanding immediately prior to the time of issuance or the close of business
on such record date; and (b) the denominator of which shall be the total number
of shares of Common Stock (assuming the conversion of all outstanding securities
of the Company that are convertible into Common Stock and the exercise of all
options and warrants to purchase Common Stock or securities that are convertible
into Common Stock) issued and outstanding immediately after the time of issuance
or the close of business on such record date. If the Company shall at any time
subdivide the outstanding shares of Common Stock, or if the Company shall at any
time combine the outstanding shares of Common Stock then the exercise price
hereunder immediately shall be decreased proportionally (in the case of a
subdivision) or increased proportionally (in the case of a combination). Any
such adjustment shall become effective at the close of business on the date the
subdivision or combination becomes effective.
4.2 Reclassification or Reorganization. If the Common Stock (or
any shares of stock or other securities which may be) issuable upon the exercise
of this Warrant shall be changed into the same or different number of shares of
any class or classes of stock, whether by capital reorganization,
reclassification or otherwise (other than a subdivision or combination of shares
or stock dividend provided for in Section 4.1 above, or a reorganization,
merger, consolidation or sale of assets provided for in Section 4.3 below), then
and in each such event the Holder shall be entitled to receive upon the exercise
of this Warrant the kind and amount of shares of stock and other securities and
property receivable upon such reorganization, reclassification or other change,
to which a holder of the number of shares of Common Stock (or any shares of
stock or other securities which may be) issuable upon the exercise of this
Warrant would have received if this Warrant had been exercised immediately prior
to such reorganization, reclassification or other change, all subject to further
adjustment as provided herein.
4.3 Merger, Consolidation or Sale of Assets. If at any time or
from time to time there shall be a capital reorganization of the Common Stock
(other than a subdivision, combination, reclassification or exchange of shares
provided for elsewhere in this Section 4) or a merger or consolidation of the
Company with or into another corporation, or the sale of all or substantially
all of the Company's assets and properties to any other person or entity, then
as a part of such reorganization, merger, consolidation or sale, provision shall
be made so that the Holder shall thereafter be entitled to receive upon the
exercise of this Warrant, the number of shares of stock or other securities or
property of the Company, or of the successor corporation resulting from such
reorganization, merger, consolidation or sale, to which a holder of the number
of shares of Common Stock (or any shares of stock or other securities which may
be) issuable upon the exercise of this Warrant would have received if this
Warrant had been exercised immediately prior to such reorganization, merger,
consolidation or sale.
4.4 Notice of Adjustments and Record Dates. The Company shall
promptly notify the Holder in writing of each adjustment or readjustment of the
exercise price hereunder and the number of shares of Common Stock (or any shares
of stock or other securities which may be) issuable upon the exercise of this
Warrant. Such notice shall state the adjustment or readjustment and show in
reasonable detail the facts on which that adjustment or readjustment is
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based. In the event of any taking by the Company of a record of the holders of
Common Stock for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution, the Company shall notify the
Holder in writing of such record date at least ten (10) days prior to the date
specified therein.
4.5 No Impairment. The Company shall not avoid or seek to avoid
the observance or performance of any of the terms to be observed or performed
hereunder by the Company, but shall at all times in good faith assist in the
carrying out of all the provisions of this Warrant. Without limiting the
generality of the foregoing, the Company (a) shall at all times reserve and keep
available a number of its authorized shares of Common Stock, free from all
preemptive rights therein, which shall be sufficient to permit the exercise of
this Warrant and (b) shall take all such action as may be necessary or
appropriate in order that all shares of Common Stock as may be issued pursuant
to the exercise of this Warrant shall, upon issuance, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issue thereof.
5. Replacement of Warrants. On receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, in the case of any such loss, theft or
destruction of this Warrant, on delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense shall execute and deliver to the Holder, in lieu thereof, a new Warrant
of like tenor.
6. Investment Intent. Unless a current registration statement under the
Act shall be in effect with respect to the securities to be issued upon exercise
of this Warrant, the Holder, by accepting this Warrant, covenants and agrees
that, at the time of exercise hereof, the Holder shall deliver to the Company a
written statement that the securities acquired by the Holder upon exercise
hereof are for the own account of the Holder for investment and are not acquired
with a view to, or for sale in connection with, any distribution thereof (or any
portion thereof) and with no present intention (at any such time) of offering or
distributing such securities (or any portion thereof).
7. No Rights or Liability as a Shareholder. This Warrant does not
entitle the Holder hereof to any voting rights or other rights as a shareholder
of the Company. No provisions hereof, in the absence of affirmative action by
the Holder to purchase Common Stock, and no enumeration herein of the rights or
privileges of the Holder, shall give rise to any liability of the Holder as a
shareholder of the Company.
8. Miscellaneous.
8.1 Transfer of Warrant. This Warrant shall not be transferable
or assignable in any manner and no interest shall be pledged or otherwise
encumbered by Holder without the express written consent of the Company, and any
such attempted disposition of this Warrant or any portion hereof shall be of no
force or effect.
8.2 Titles and Subtitles. The titles and subtitles used in this
Warrant are for convenience only and are not to be considered in construing or
interpreting this Warrant.
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8.3 Notices. Any notice required or permitted under this Warrant
shall be given in writing and in accordance with Section 6.3 of the Purchase
Agreement (for purposes of which, the term "Investor" shall mean Holder
hereunder), except as otherwise expressly provided in this Warrant.
8.4 Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Warrant, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and disbursements
in addition to any other relief to which such party may be entitled.
8.5 Amendments and Waivers. Any term of this Warrant may be
amended and the observance of any term of this Warrant may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the holders of
Warrants representing together the right to purchase at least fifty-one percent
(51%) of all of the Common Stock of the Company subject to purchase pursuant to
all of the Warrants and in accordance with the Purchase Agreement. Any amendment
or waiver effected in accordance with this Section 8.5 shall be binding upon the
Holder of this Warrant (and of any securities into which this Warrant is
convertible), each future holder of all such securities, and the Company.
8.6 Severability. If one or more provisions of this Warrant are
held to be unenforceable under applicable law, such provision shall be excluded
from this Warrant and the balance of the Warrant shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
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8.7 Governing Law. This Warrant shall be governed by and
construed and enforced in accordance with the laws of the State of California,
without giving effect to its conflicts of laws principles.
Date: April 15, 1998 IRORI, a California corporation
By: ___________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Chief Financial
Officer
[SIGNATURE PAGE TO WARRANT TO
PURCHASE SHARES OF CAPITAL STOCK]
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SCHEDULE 1
FORM OF SUBSCRIPTION
(To be signed only on exercise of Warrant)
To: IRORI
The undersigned, the holder of the Warrant attached hereto, hereby
irrevocably elects to exercise the purchase rights represented by such Warrant
for, and to purchase thereunder, _____________* shares of Common Stock of IRORI,
and herewith makes payment of $________ therefor, and requests that the
certificates for such shares be issued in the name of, and delivered to
______________________________________, whose address is
______________________________________________.
________________________________________
(Signature must conform in all respects
to name of the Holder as specified on
the face of the Warrant)
________________________________________
(Print Name)
________________________________________
(Address)
Dated: _________________
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* Insert here the number of shares as to which the Warrant is being exercised.
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SCHEDULE I
Number Warrantholders
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6 Enterprise Partners III, L.P.
7 Enterprise Partners III Associates, L.P.
8 ▇▇▇▇▇▇▇▇ VII
9 ▇▇▇▇▇▇▇▇ Associates Fund II