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Exhibit 4.5
NEITHER THIS WARRANT NOR THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. NO SALE OR
DISPOSITION MAY BE EFFECTED EXCEPT IN
COMPLIANCE WITH RULE 144 UNDER SAID ACT OR
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF
COUNSEL FOR THE HOLDER, SATISFACTORY TO THE
COMPANY, THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE ACT OR RECEIPT OF A
NO-ACTION LETTER FROM THE SECURITIES
AND EXCHANGE COMMISSION.
WARRANT TO PURCHASE 4,817 SHARES OF
SERIES A CONVERTIBLE PREFERRED STOCK
January 8, 2004
THIS CERTIFIES THAT, for value received,
GENERAL ELECTRIC CAPITAL CORPORATION
("Holder") is entitled to subscribe for and
purchase four thousand eight hundred
seventeen (4,817) shares of the fully paid
and no assessable Series A
Convertible Preferred Stock (the "Shares"
or the "Series A Preferred Stock") of
Predix Pharmaceuticals Holdings, Inc., a
Delaware corporation (the "Company"),
at the Warrant Price (as hereinafter
defined), pursuant to that certain
equipment lease financing agreement by and
between the Holder and the Company
dated December 3, 2002, subject to the
provisions and upon the terms and
conditions hereinafter set forth.
1. Warrant Price. The Warrant Price shall
initially be Ten and 00/100 dollars
($10.00) per share, subject to adjustment
as provided in Section 7 below.
2. Conditions to Exercise. The purchase
right represented by this Warrant may be
exercised at any time, or from time to
time, in whole or in part during the term
commencing on the date hereof and ending at
5:00 P.M. Pacific time on the tenth
anniversary of the date of this Warrant
(the "Expiration Date").
3. Method of Exercise; Payment; Issuance of
Shares; Issuance of New Warrant.
(a) Cash
Exercise. Subject to Section 2 hereof, the purchase right
represented by this Warrant may be
exercised by the Holder hereof, in whole or
in part, by the surrender of this Warrant
(with a duly executed Notice of
Exercise in the form attached hereto) at
the principal office of the Company (as
set forth in Section 18 below) and by
payment to the Company, by check, of an
amount equal to the then applicable Warrant
Price per share multiplied by the
number of shares then being purchased. In
the event of any exercise of the
rights represented by this Warrant,
certificates for the shares of stock so
purchased shall be in the name of, and
delivered to, the Holder hereof, or as
such Holder may direct (subject to the
terms of transfer contained herein and
upon payment by such Holder hereof of any
applicable transfer taxes). Such
delivery shall be made within 30 days after
exercise of the Warrant and at the
Company's expense and, unless this Warrant
has been fully exercised or expired,
a new Warrant having terms and conditions
substantially identical to this
Warrant and representing the portion of the
Shares, if any, with respect to
which this Warrant shall not have been
exercised, shall also be issued to the
Holder hereof within 30 days after exercise
of the Warrant.
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(b) Net
Issue Exercise. Holder may also elect to receive shares equal
to
the value of this Warrant (or of any
portion thereof remaining unexercised) 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 Holder the
number of shares of Series A Preferred
Stock computed using the following
formula:
X = Y
(A-B)
-------
A
Where X =
the number of shares of Series A Preferred Stock to be issued
to
Holder.
Y = the
number of shares of Series A Preferred Stock purchasable under
this Warrant (at the date of such calculation).
A = the
Fair Market Value of one share of the Series A Preferred Stock
(at
the date of such calculation).
B =
Warrant Price (as adjusted to the date of such calculation).
(c) Fair
Market Value. For purposes of this Section 3, Fair Market Value
of one share of Series A Preferred Stock
shall mean:
(i) The average of the closing bid and asked prices of the
Company's
common stock, $0.01 par value (the "Common Stock") quoted in
the
Over-The-Counter Market Summary, the last reported sale price
quoted on
the Nasdaq National Market or on any exchange on which the Common
Stock
is listed, whichever is applicable, as published in the Western
Edition
of the Wall Street Journal for the ten (10) trading days prior to
the
date of determination of Fair Market Value; or
(ii) In the event of an exercise in connection with a merger,
acquisition or other consolidation in which the Company is not
the
surviving entity, the per share Fair Market Value for the Stock
shall
be the value to be received per share of Series A Preferred Stock
by
all holders of the
Series A Preferred Stock in such transaction as
determined by the Board of Directors; or
(iii) In any other instance, the per share Fair Market Value for
the
Series A Preferred Stock shall be as determined in good faith by
the
Company's Board of Directors.
In the event of 3(c)(ii) or 3(c)(iii), above, the Company's Board
of
Directors shall prepare a certificate, to be signed by an
authorized
officer of the Company, setting forth in reasonable detail the
basis
for and method of determination of the per share Fair Market Value
of
the Stock. The Board will also certify to the Holder that this
per
share Fair Market Value will be applicable to all holders of the
Series
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A
Preferred Stock. Such certification must be made to Holder at
least
thirty
(30) business days prior to the proposed effective date of the
merger,
consolidation, sale, or other triggering event as defined in
3(c)(ii)
or 3(c)(iii).
(d) Automatic Exercise. So
long as the Fair Market Value of the Warrant is
equal to or greater than the Warrant Price,
to the extent this Warrant is not
previously exercised, it shall be
automatically exercised in accordance with
Sections 3(b) and 3(c) hereof (even if not
surrendered) immediately before its
expiration, involuntary termination or
cancellation.
4. Representations and Warranties of Holder
and the Company.
(a) Representations and
Warranties by Holder. The Holder represents and
warrants to the Company with respect to his
purchase as follows:
(i) The
Holder has substantial experience in evaluating and investing
in
private
placement transactions of securities of companies similar to
the
Company so
that the Holder is capable of evaluating the merits and risks
of its
investment in the Company and has the capacity to protect its
interests.
(ii)
Except for transfer to a Holder's affiliates, the Holder is
acquiring
the
Warrant and the Shares of Series A Preferred Stock issuable
upon
exercise
of the Warrant (collectively the "Securities") for investment
for
its own
account and not with a view to, or for resale in connection
with,
any
distribution thereof. The Holder understands that the Securities
have
not been
registered under the Securities Act of 1933, as amended (the
"Act") by
reason of a specific exemption from the registration provisions
of the Act
which depends upon, among other things, the bona fide nature of
the
investment intent as expressed herein.
(iii) The
Holder acknowledges that the Securities must be held
indefinitely unless subsequently registered under the Act or an
exemption
from such
registration is available. The Holder is aware of the
provisions
of Rule
144 promulgated under the Act.
(iv) The
Holder is an "accredited investor" within the meaning of
Regulation
D promulgated under the Act.
(v) The Holder
has had an opportunity to discuss the Company's business,
management
and financial affairs with its management and an opportunity to
review the
Company's facilities. The Holder understands that such
discussions, as well as the written information issued by the
Company,
were
intended to describe the aspects of the Company's business and
prospects
which the Company believes to be material but were not
necessarily a thorough or exhaustive description.
(b) Company hereby
represents and warrants to Holder that the statements in
the following paragraphs of this Section
4(b) are true and correct as of the
date hereof.
(i)
Corporate Organization and Authority. The Company (a) is a
corporation
duly
organized, validly existing, and in good standing in its
jurisdiction
of
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incorporation, (b) has the corporate power and authority to own
and
operate
its properties and to carry on its business as now conducted
and
as
proposed to be conducted; and (c) is qualified as a foreign
corporation
in all
jurisdictions where the failure to be so qualified would have a
material
adverse effect on the Company.
(ii)
Corporate Power. The Company has all requisite legal and
corporate
power and
authority to execute, issue and deliver the Warrant, to issue
the Series
A Preferred Stock issuable upon exercise or conversion of the
Warrant,
and to carry out and perform its obligations under the Warrant
and any
related agreements.
(iii)
Authorization; Enforceability. All corporate action on the part
of
Company,
its officers, directors and shareholders necessary for the
authorization, execution, delivery and performance of its
obligations
under this
Warrant and for the authorization, issuance and delivery of the
Warrant
and Stock issuable upon exercise of the Warrant has been taken
and
this
Warrant constitutes the legally binding and valid obligation of
Company
enforceable in accordance with its terms.
(iv) Valid
Issuance of Warrant and Series A Preferred Stock. The Warrant
has been
validly issued and is free of restrictions on transfer other
than
restrictions on transfer set forth herein and under applicable
state and
federal
securities laws. The Series A Preferred Stock issuable upon
conversion
of this Warrant, when issued, sold and delivered in accordance
with the
terms of this Warrant for the consideration expressed herein,
will be
duly and validly issued, fully paid and no assessable, and will
be
free of
restrictions on transfer other than restrictions on transfer
under
this
Warrant and under applicable state and federal securities laws.
Subject to
applicable restrictions on transfer, the issuance and delivery
of the
Warrant and the Series A Preferred Stock issuable upon
conversion
of the
Warrant are not subject to any preemptive or other similar
rights
or any
liens or encumbrances except as specifically set forth in
Company's
Certificate of Incorporation, as amended and restated to date
(the
"Certificate of Incorporation"), or this Warrant. The offer, sale
and
issuance
of the Warrant and Series A Preferred Stock, as contemplated by
this
Warrant, are exempt from the prospectus and registration
requirements
of
applicable United States federal and state security laws, and
neither
Company
nor any authorized agent acting on its behalf has or will take
any
action
hereafter that would cause the loss of such exemption.
(v) No
Conflict with Other Instruments. The execution, delivery, and
performance of this Warrant will not result in any violation of, be
in
conflict
with, or constitute a default under, with or without the
passage
of time or
the giving of notice (a) any provision of Company's Certificate
of
Incorporation or by-laws; (b) any provision of any judgment,
decree, or
order to
which Company is a party or by which it is bound or an event
which
results in the creation of any material lien, charge or
encumbrance
upon any
material assets of Company; (c) any
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contract,
obligation, or commitment to which Company is a party or by
which it
is bound; or (d) any statute, rule, or governmental regulation
applicable
to Company.
(vi)
Capitalization. As of the date of this Warrant, the authorized
and
issued capital
stock of Company is as set forth in Exhibit A. The
outstanding shares have been duly authorized and validly issued
(including, without limitation, issued in compliance with
applicable
federal
and state securities laws), are fully paid and nonassessable
and
have been
issued in compliance with the registration and prospectus
delivery
requirements of the Securities Act and the registration and
qualification requirements of all applicable state securities laws,
or in
compliance
with applicable exemptions therefrom. The Company has reserved
4,817
shares of Series A Preferred Stock for issuance upon exercise
of
this
Warrant and 48,170 shares of Common Stock for the conversion of
the
Series A
Preferred Stock to Common Stock. Except as set forth on the
capitalization table attached to this Warrant in Exhibit A, there
are no
outstanding warrants, options, conversion privileges, preemptive
rights or
other
rights or agreements to purchase or otherwise acquire or issue
any
equity
securities or convertible securities of Company, nor has the
issuance
of any of the aforesaid rights to acquire securities of Company
been
authorized.
(vii)
Governmental Consents. No consent, approval, order or
authorization
of, or
registration, qualification, designation, declaration or filing
with, any
federal, state or local governmental authority on the part of
Company is
required in connection with the offer, sale or issuance of the
Warrant
(and the Stock issuable upon the exercise of this Warrant), or
the
consummation of any other transaction contemplated hereby, except
for the
following:
(a) the filing of a notice on Form D under the Act and (b) the
compliance
with other applicable state securities laws, which compliance
will have
occurred within the appropriate time periods therefore. The
offer,
sale and issuance of the Warrant and the shares of Stock in
conformity
with the terms of this Warrant are exempt from the registration
requirements of the Act and any applicable state laws.
(c) Within ten (10) days of
the Holder providing notice to the Company of its
intent to exercise this Warrant, the
Company will deliver to the Holder an
Officer's Certificate certifying that all
of the representations and warranties
set forth in this Section 4 are true and
correct in all material respects as of
the date of such certificate, except for
Section 4(vi), in which case the
Company will deliver to the Holder an
updated capitalization table in the same
form as set forth in Appendix A and make
the representations and warranties set
forth in Section 4(vi) as they relate to
the updated capitalization table.
5. Legends.
(a) Each certificate representing
the Securities shall be endorsed with the
following legend:
THESE SECURITIES HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AND MAY NOT BE TRANSFERRED
UNLESS COVERED BY AN
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EFFECTIVE
REGISTRATION STATEMEN
