Exhibit 10.25
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.
WARRANT TO PURCHASE COMMON STOCK
of
PHARMANETICS, INC.
VOID AFTER FEBRUARY 25, 2005
No. __
This Warrant is issued to ________________ ("Holder")
by PHARMANETICS, INC., a North Carolina corporation (the "Company"), on February
25, 2000 (the "Warrant Issue Date"). This Warrant is issued pursuant to the
terms of that certain Series A Preferred Stock and Warrant Purchase Agreement
dated as of February 24, 2000 (the "Purchase Agreement") by and between the
Company and Holder.
1. Purchase Shares. Subject to the terms and conditions
hereinafter set forth, the Holder is entitled, upon surrender of this Warrant at
the principal office of the Company (or at such other place as the Company shall
notify the Holder in writing), to purchase from the Company up to
_________________ fully paid and nonassessable shares of Common Stock of the
Company, as constituted on the Warrant Issue Date (the "Common Stock"). The
number of shares of Common Stock issuable pursuant to this Section 1 (the
"Shares") shall be subject to adjustment pursuant to Section 8 hereof.
2. Exercise Price. The purchase price per share for the Shares
shall be $10.00, as adjusted from time to time pursuant to Section 8 hereof (the
"Exercise Price").
3. Exercise Period. This Warrant shall be exercisable, in
whole or in part, during the term commencing on the date three months following
the Warrant Issue Date and ending at 5:00 p.m. on February 25, 2005; provided,
however, that in the event of (a) the closing of the Company's sale or transfer
of all or substantially all of its assets, or (b) the closing of the acquisition
of the Company by another entity by means of merger, consolidation or other
transaction or series of related transactions, resulting in the exchange of the
outstanding shares of the Company's capital stock such that at least 50% of the
voting power of the Company is transferred, this Warrant shall, on the date of
such event, no longer be exercisable and become null and void. In the event of a
proposed transaction of the kind described above, the Company shall notify the
Holder at least fifteen (15) business days prior to the consummation of such
event or transaction.
4. Method of Exercise. While this Warrant remains outstanding
and exercisable in accordance with Section 3 above, the Holder may exercise, in
whole or in part, the purchase rights evidenced hereby. Such exercise shall be
effected by:
(a) the surrender of the Warrant, together with a
duly executed copy of the form of Notice of Election attached hereto, to the
Secretary of the Company at its principal offices; and
(b) the payment to the Company of an amount equal to
the aggregate Exercise Price for the number of Shares being purchased.
5. Net Exercise. In lieu of exercising this Warrant pursuant
to Section 4, the Holder may elect to receive, without the payment by the Holder
of any additional consideration, shares of Common Stock equal to the value of
this Warrant (or the portion thereof being canceled) by surrender of this
Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to the Holder a number of
shares of Common Stock computed using the following formula:
Y (A - B)
---------
X = A
Where: X = The number of shares of Common Stock to be
issued to the Holder pursuant to this net
exercise;
Y = The number of Shares in respect of which the
net issue election is made;
A = The fair market value of one share of the
Common Stock at the time the net issue
election is made;
B = I The Exercise Price (as adjusted to the date
of the net issuance).
For purposes of this Section 5, the fair market value of one share of Common
Stock as of a particular date shall be determined as follows: (i) if traded on a
securities exchange or through the Nasdaq National or SmallCap Market, the value
shall be deemed to be the average of the closing prices of the securities on
such exchange over the thirty (30) day period ending three (3) days prior to the
net exercise election; (ii) if traded over-the-counter, the value shall be
deemed to be the average of the closing bid or sale prices (whichever is
applicable) over the thirty (30) day period ending three (3) days prior to the
net exercise; and (iii) if there is no active public market, the value shall be
the fair market value thereof, as determined in good faith by the Board of
Directors of the Company.
6. Certificates for Shares. Upon the exercise of the purchase
rights evidenced by this Warrant, one or more certificates for the number of
Shares so purchased shall be issued as soon as practicable thereafter (with
appropriate restrictive legends, if applicable), and in any event within thirty
(30) days.
7. Issuance of Shares. The Company covenants that the Shares,
when issued pursuant to the exercise of this Warrant, will be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges
with respect to the issuance thereof.
8. Adjustment of Exercise Price and Number of Shares. The
number of and kind of securities purchasable upon exercise of this Warrant and
the Exercise Price shall be subject to adjustment from time to time as follows:
(a) Subdivisions, Combinations and Other Issuances.
If the Company shall at any time prior to the expiration of this Warrant
subdivide its Common Stock, by split-up or otherwise, or combine its Common
Stock, or issue additional shares of its Common Stock as a dividend with respect
to any shares of its Common Stock, the number of Shares issuable on the exercise
of this Warrant shall forthwith be proportionately increased in the case of a
subdivision or stock dividend, or proportionately decreased in the case of a
combination. Appropriate adjustments shall also be made to the purchase price
payable per share, but the aggregate purchase price payable for the total number
of Shares purchasable under this Warrant (as adjusted) shall remain the same.
Any adjustment under this Section 8(a) shall become effective at the close of
business on the date the subdivision or combination becomes effective, or as of
the record date of such dividend, or in the event that no record date is fixed,
upon the making of such dividend.
(b) Reclassification, Reorganization and
Consolidation. In case of any reclassification, capital reorganization, or
change in the Common Stock of the Company (other than as a result of a
subdivision, combination, or stock dividend provided for in Section 8(a) above),
then, as a condition of such reclassification, reorganization, or change, lawful
provision shall be made, and duly executed documents evidencing the same from
the Company or its successor shall be delivered to the Holder, so that the
Holder shall have the right at any time prior to the expiration of this Warrant
to purchase, at a total price equal to that payable upon the exercise of this
Warrant, the kind and amount of shares of stock and other securities and
property receivable in connection with such reclassification, reorganization, or
change by a holder of the same number of shares of Common Stock as were
purchasable by the Holder immediately prior to such reclassification,
reorganization, or change. In any such case appropriate provisions shall be made
with respect to the rights and interest of the Holder so that the provisions
hereof shall thereafter be applicable with respect to any shares of stock or
other securities and property deliverable upon exercise hereof, and appropriate
adjustments shall be made to the purchase price per share payable hereunder,
provided the aggregate purchase price shall remain the same.
(c) Issuances at Less Than Fair Market Value. Upon
the issuance or sale by the Company of:
(4) Common Stock for a consideration per
share less than the Fair Market Value (as defined
below) in effect immediately prior to the time of
such issue or sale; or
(5) any Stock Purchase Rights (as defined
below) where the consideration per share for
which shares of Common Stock may at any time
thereafter be issuable upon exercise thereof (or,
in the case of Stock Purchase Rights exercisable
for the purchase of Convertible Securities, upon
the subsequent conversion or exchange of such
Convertible Securities) shall be less than the
Fair Market Value in effect immediately prior to
the time of the issue or sale of such Stock
Purchase Rights; or
(6) any Convertible Securities where the
consideration per share for which shares of
Common Stock may at any time thereafter be
issuable pursuant to the terms of such
Convertible Securities shall be less than the
Fair Market Value in effect immediately prior to
the time of the issue or sale of such Convertible
Securities;
other than an issuance of Common Stock pursuant to Subsections 8(a), 8(b) or
8(d)(6) hereof (any such issuance shall be referred to hereinafter as a
"Dilutive Issuance"), then forthwith upon such issue or sale, the Exercise Price
shall be reduced to the Weighted Average Price (as defined below).
The "Weighted Average Price" shall be determined by the following
formula:
EP(1) = EP * N + C
-------
N + AS
where:
EP(1) = the Weighted Average Price;
EP = the former Exercise Price;
N = the number of shares of Common Stock outstanding
immediately prior to such issuance (or deemed
issuance) assuming exercise or conversion of all
outstanding securities exercisable for or
convertible into Common Stock;
C = the number of shares of Common Stock that the
aggregate consideration received or deemed to be
received by the Company for the total number of
additional securities so issued or deemed to be
issued would purchase if the purchase price per
share were equal to the Fair Market Value;
AS = the number of shares of Common Stock so issued or deemed to
be issued
Notwithstanding the foregoing, no Exercise Price shall at such time be reduced
if such reduction would be an amount less than $.01, but any such amount shall
be carried forward and deduction with respect thereto made at the time of and
together with any subsequent reduction that, together with such amount and any
other amount or amounts so carried forward, shall aggregate $.01 or more.
Provided, further, that exercise of Stock Purchase Rights or conversion of
Convertible Securities shall not be deemed a Dilutive Issuance.
(d) For purposes of this Section 8, the following
provisions will be applicable:
(6) "Convertible Securities" shall mean
evidences of indebtedness, shares of stock
(including, without limitation, the Series A
Preferred Stock) or other securities that
are convertible into or exchangeable for,
with or without payment of additional
consideration, shares of Common Stock.
(7) "Stock Purchase Rights" shall mean any
warrants, options or other rights to
subscribe for, purchase or otherwise acquire
any shares of Common Stock or any
Convertible Securities.
(8) Convertible Securities and Stock Purchase
Rights shall be deemed outstanding and
issued or sold at the time of such issue or
sale.
(9) Determination of Consideration. The
"consideration actually received" by the
Company for the issuance, sale, grant or
assumption of shares of Common Stock,
irrespective of the accounting treatment of
such consideration, shall be valued as
follows:
(A) Cash Payment. In the case of cash, the
net amount received by the Company after deduction of any accrued interest or
dividends and before deducting any expenses paid or incurred and any
underwriting commissions or concessions paid or allowed by the Company in
connection with such issue or sale;
(B) Noncash Payment. In the case of
consideration other than cash, the value of such consideration, which shall not
include the value of any Convertible Securities being converted or exchanged, as
determined by the Board of Directors in good faith, after deducting any accrued
interest or dividends; and
(C) Stock Purchase Rights and Convertible
Securities. The total consideration, if any, received by the Company as
consideration for the issuance of the Stock Purchase Rights or the Convertible
Securities, as the case may be, plus the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the exercise of such Stock
Purchase Rights or upon the conversion or exchange of such Convertible
Securities, as the case may be, in each case after deducting any accrued
interest or dividends.
(10) Readjustment of Conversion Price. In the
event of any change in (i) the
consideration, if any, payable upon exercise
of any Stock Purchase Rights or upon the
conversion or exchange of any Convertible
Securities or (ii) the rate at which any
Convertible Securities are convertible into
or exchangeable for shares of Common Stock,
the applicable Conversion Price as computed
upon the original issue thereof shall
forthwith be readjusted to the Conversion
Price that would have been in effect at such
time had such Stock Purchase Rights or
Convertible Securities provided for such
changed purchase price, consideration or
conversion rate, as the case may be, at the
time initially granted, issued or sold. On
the expiration of any Stock Purchase Rights
not exercised or of any right to convert or
exchange under any Convertible Securities
not exercised, the applicable Conversion
Price then in effect shall forthwith be
increased to the Conversion Price that would
have been in effect at the time of such
expiration had such Stock Purchase Rights or
Convertible Securities never been issued. No
readjustment of the Exercise Price pursuant
to this Subsection shall require any
adjustment to the amount paid or number of
shares of Common Stock received by any
Warrant holder upon any exercise of the
Warrant prior to the date upon which such
readjustment to the Exercise Price shall
occur.
(6) Exclusions. Anything herein to the
contrary notwithstanding, the Company shall not be required to make any
adjustment of the Exercise Price in the case of (i) the issuance or sale of
options, or the shares of stock issuable upon exercise of such options, to
purchase shares of Common Stock to directors, officers, employees or consultants
of the Corporation pursuant to stock options or stock purchase plans or
agreements, pursuant to plans or arrangements approved by the Board of
Directors, (ii) the issuance of Common Stock upon conversion of the Series A
Preferred Stock and (iii) the issuance of securities in connection with a bona
fide business acquisition of or by the
Company, whether by merger, consolidation, sale of assets, sale of stock or
otherwise. The issuances or sales described in the subsections 8(a) and (b)
shall be ignored for purposes of calculating any adjustment to the Exercise
Price.
(7) Fair Market Value. For purposes of this
Section 8 "Fair Market Value" shall be equal to the lesser of: (a) the closing
sale price of the Company's Common Stock on the effective date of issuance, or
(b) the average of the closing sale price of the Company's Common Stock or the
15 trading days prior to the effective date of issuance, both prices as reported
on Nasdaq or such other principal exchange on which such Common Stock is then
traded.
(e) Notice of Adjustment. When any
adjustment is required to be made in the number or kind of shares purchasable
upon exercise of the Warrant, or in the Warrant Price, the Company shall
promptly notify the Holder of such event and of the number of shares of Common
Stock or other securities or property thereafter purchasable upon exercise of
this Warrant.
9. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the exercise of this
Warrant, but in lieu of such fractional shares the Company shall make a cash
payment therefor on the basis of the Exercise Price then in effect.
10. No Stockholder Rights. Prior to exercise of this Warrant,
the Holder shall not be entitled to any rights of a stockholder with respect to
the Shares, including (without limitation) the right to vote such Shares,
receive dividends or other distributions thereon, exercise preemptive rights or
be notified of stockholder meetings, and such Holder shall not be entitled to
any notice or other communication concerning the business or affairs of the
Company. However, nothing in this Section 10 shall limit the right of the Holder
to be provided any notices required under this Warrant or the Purchase
Agreement.
11. Transfers of Warrant. Subject to compliance with
applicable federal and state securities laws, this Warrant and all rights
hereunder are transferable in whole or in part by the Holder to any person or
entity upon written notice to the Company. The transfer shall be recorded on the
books of the Company upon the surrender of this Warrant, properly endorsed, to
the Company at its principal offices, and the payment to the Company of all
transfer taxes and other governmental charges imposed on such transfer and, if
so requested by the Company, an opinion of counsel to the effect that the
transfer may be effected in accordance with applicable securities laws. In the
event of a partial transfer, the Company shall issue to the holders one or more
appropriate new warrants.
12. Successors and Assigns. The terms and provisions of this
Warrant and the Purchase Agreement shall inure to the benefit of, and be binding
upon, the Company and the Holders hereof and their respective successors and
assigns.
13. 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 Holder. Any
waiver or amendment effected in accordance with this Section shall be binding
upon each holder of any Shares purchased under this Warrant at the time
outstanding (including securities into which such Shares have been converted),
each future holder of all such Shares, and the Company.
14. Notices. All notices required under this Warrant shall be
deemed to have been given or made for all purposes (i) upon personal delivery,
(ii) upon confirmation receipt that the communication was successfully sent to
the applicable number if sent by facsimile; (iii) one day after
being sent, when sent by professional overnight courier service, or (iv) five
days after posting when sent by registered or certified mail. Notices to the
Company shall be sent to the principal office of the Company (or at such other
place as the Company shall notify the Holder hereof in writing). Notices to the
Holder shall be sent to the address of the Holder on the books of the Company
(or at such other place as the Holder shall notify the Company hereof in
writing).
15. Attorneys' Fees. If any action of law or equity is
necessary to enforce or interpret the terms of this Warrant, the prevailing
party shall be entitled to its reasonable attorneys' fees, costs and
disbursements in addition to any other relief to which it may be entitled.
16. Captions. The section and subsection headings of this
Warrant are inserted for convenience only and shall not constitute a part of
this Warrant in construing or interpreting any provision hereof.
17. Governing Law. This Warrant shall be governed by the laws
of the State of Delaware.
IN WITNESS WHEREOF, the Company caused this Warrant to be
executed by an officer thereunto duly authorized.
PHARMANETICS, INC.
By:______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President and
Chief Executive Officer
.NOTICE OF EXERCISE
--------------------
To: Chief Executive Officer
PharmaNetics, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The undersigned hereby elects to [CHECK APPLICABLE SUBSECTION]:
_______ (a) Purchase ______________ shares of Common Stock of
PharmaNetics, Inc., pursuant to the terms of the attached
Warrant and payment of the Exercise Price per share required
under such Warrant accompanies this notice;
OR
_______ (b) Exercise the attached Warrant for [all of the shares] [____ of
the shares] [CROSS OUT INAPPLICABLE PHRASE] purchasable under
the Warrant pursuant to the net exercise provisions of Section
5 of such Warrant.
WARRANTHOLDER:
By:_____________________________
Name:___________________________
Title:__________________________
Address:________________________
________________________
Date:_________________
Name in which shares should be registered:
____________________________