Exhibit 4.1
Form of
Warrant
THE WARRANTS REPRESENTED BY THIS
CERTIFICATE AND THE SECURITIES ISSUABLE UPON EXERCISE THEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
“SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE.
NEITHER SUCH WARRANTS NOR SUCH SECURITIES MAY BE SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT SUCH REGISTRATION,
EXCEPT UPON DELIVERY TO THE COMPANY OF SUCH EVIDENCE AS MAY BE
SATISFACTORY TO COUNSEL FOR THE COMPANY TO THE EFFECT THAT ANY SUCH
TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT OR
APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATION
PROMULGATED THEREUNDER.
Nile Therapeutics,
Inc.
Class A/B/C Warrant for the
Purchase
of Shares of Common
Stock
|
|
|
|
Warrant No.
[ ]
|
|
Number of Shares:
[ ]
(subject to adjustment)
|
|
Original Issue
Date: July 15, 2009
|
|
|
FOR VALUE RECEIVED, NILE
THERAPEUTICS, INC., a Delaware corporation (the “
Company ”), hereby certifies that
[ ],
its designee or its permitted assigns (the “ Holder
”), is entitled to purchase from the Company, at any time or
from time to time commencing on July 15, 2009 and prior to
5:00 P.M., New York City time, on July 15, 2014 (the “
Exercise Period ”) up to
[ ]
(
) fully paid and non-assessable shares of common stock (subject to
adjustment), $.001 par value per share, of the Company for
[ ]
per share (subject to adjustment as provided herein) and an
aggregate purchase price of
[ ]
($
). Hereinafter, (i) said common stock, $.001 par value per
share, of the Company, is referred to as the “ Common
Stock, ” (ii) the shares of the Common Stock
purchasable hereunder or under any other Warrant (as hereinafter
defined) are referred to as the “ Warrant Shares,
” (iii) the aggregate purchase price payable for the
Warrant Shares purchasable hereunder is referred to as the “
Aggregate Warrant Price, ” and (iv) the price
payable for each of the Warrant Shares is referred to as the
“ Per Share Warrant Price .” The Aggregate
Warrant Price is not subject to adjustment.
This Warrant is one of a series of
similar warrants issued pursuant to a Securities Purchase
Agreement, dated July 7, 2009, by and among the Company and
the Purchasers identified therein (the “ Securities
Purchase Agreement ”). All such warrants, including this
Warrant and all warrants hereafter issued in exchange or
substitution for this Warrant and such other similar warrants, are
collectively referred to herein as the “ Warrants
.” The Holder, together with the holders of all other
Warrants, are collectively referred to herein as the “
Holders ,” and Holders of more than 50% of the
outstanding Warrants are referred to as the “ Majority of
the Holders .”
1. Exercise of Warrant
.
(a) At the Holder’s option,
this Warrant may be exercised, in whole or in part, at any time or
from time to time during the Exercise Period, by the Holder upon
surrender of this Warrant (with the subscription form at the end
hereof duly executed) at the address set forth in Section 9(a)
hereof, together with proper payment of the Aggregate Warrant
Price, or the proportionate part thereof if this Warrant is
exercised in part, with payment for the Warrant Shares made by
certified or official bank check payable to the order of the
Company.
(b) If this Warrant is exercised in
part, this Warrant must be exercised for a number of whole shares
of Common Stock and the Holder is entitled to receive a new Warrant
covering the Warrant Shares that have not been exercised and
setting forth the proportionate part of the Aggregate Warrant Price
applicable to such Warrant Shares.
(c) Upon surrender of this Warrant,
the Company will (i) issue a certificate or certificates in
the name of the Holder for the largest number of whole shares of
the Common Stock to which the Holder shall be entitled and, if this
Warrant is exercised in whole, in lieu of any fractional share of
the Common Stock to which the Holder shall be entitled, pay to the
Holder cash in an amount equal to the fair value of such fractional
share (determined in such reasonable manner as the Board of
Directors of the Company shall determine), and (ii) deliver
the other securities and properties receivable upon the exercise of
this Warrant, or the proportionate part thereof if this Warrant is
exercised in part, pursuant to the provisions of this
Warrant.
2. Reservation of Warrant
Shares . The Company will at all times reserve and keep
available, solely for issuance and delivery upon the exercise of
this Warrant, such number of Warrant Shares and other securities,
cash and/or property, as from time to time shall be issuable upon
the exercise of this Warrant.
3. Protection Against
Dilution .
(a) In case the Company shall
hereafter (i) pay a dividend or make a distribution to any
holder of its capital stock in shares of Common Stock,
(ii) subdivide its outstanding shares of Common Stock into a
greater number of shares, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares or (iv) issue
by reclassification of its Common Stock any shares of capital stock
of the Company, the Per Share Warrant Price shall be adjusted to be
equal to a fraction, the numerator of which shall be the Aggregate
Warrant Price and the denominator of which shall be the number of
shares of Common Stock or other capital stock of the Company that
the Holder would have owned immediately following such action had
such Warrant been exercised immediately prior thereto. An
adjustment made pursuant to this Subsection 3(a) shall become
effective immediately after the record date in the case of a
dividend or distribution, and shall become effective immediately
after the effective date in the case of a subdivision, combination
or reclassification.
(b) In case of (i) any merger
or consolidation to which the Company is a party other than a
merger or consolidation in which the Company is the continuing
corporation, or (ii) any sale or conveyance to another entity
of the property of the Company as an entirety or substantially as a
entirety, or (iii) any statutory exchange of securities with,
or tender offer by, another corporation (including any exchange
effected in connection with a merger of a third corporation into
the Company), or (iv) reclassification of the Common Stock or
any compulsory share exchange pursuant to which the Common Stock is
effectively converted into or exchanged for other securities, cash
or property (other than as a result of a subdivision or combination
of shares of Common Stock covered by Section 3(a) above), the
Holder of this Warrant shall have the right thereafter to receive
on the exercise of this Warrant the kind and amount of securities,
cash or other property which the Holder would have owned or have
been entitled to receive immediately after such reclassification,
consolidation, merger, statutory exchange, tender offer, sale or
conveyance had this Warrant been exercised immediately prior to the
effective date of such reclassification, consolidation, merger,
statutory exchange, tender offer, sale or conveyance and in any
such case, if necessary, appropriate adjustment shall be made in
the application of the provisions set forth in this Section 3
with respect to the rights and interests thereafter of the Holder
of this Warrant to the end that the provisions set forth in this
Section 3 shall thereafter correspondingly be made applicable,
as nearly as may reasonably be, in relation to any shares of stock
or other securities or property thereafter deliverable on the
exercise of this Warrant. The above provisions of this
Section 3(b) shall similarly apply to successive
reclassifications, consolidations, mergers, statutory exchanges,
sales or conveyances. The Company shall require the issuer of any
shares of stock or other securities or property thereafter
deliverable on the exercise of this Warrant to be responsible for
all of the agreements and obligations of the Company hereunder.
Notice of any such reclassification, consolidation, merger,
statutory exchange, tender offer, sale or conveyance and of said
provisions so proposed to be made, shall be mailed to the Holders
of the Warrants not less than 30 days prior to such event. A sale
of all or substantially all of the assets of the Company for a
consideration consisting primarily of securities shall be deemed a
consolidation or merger for the foregoing purposes.
2
(c) All calculations under this
Section 3 shall be made to the nearest cent or to the nearest
1/100th of a share, as the case may be. Anything in this
Section 3 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the Per Share Warrant Price,
in addition to those required by this Section 3, as it in its
discretion shall deem to be advisable in order that any stock
dividend, subdivision of shares or distribution of rights to
purchase stock or securities convertible or exchangeable for stock
hereafter made by the Company to its stockholders shall not be
taxable.
(d) Whenever the Per Share Warrant
Price is adjusted as provided in this Section 3 and upon any
modification of the rights of a Holder of Warrants in accordance
with this Section 3, the Company shall promptly prepare a
brief statement of the facts requiring such adjustment or
modification and the manner of computing the same and cause copies
of such certificate to be mailed to the Holders of the Warrants.
The Company may, but shall not be obligated to unless requested by
a Majority of the Holders, obtain, at its expense, a certificate of
a firm of independent public accountants of recognized standing
selected by the Board of Directors (who may be the regular auditors
of the Company) setting forth the Per Share Warrant Price and the
number of Warrant Shares in effect after such adjustment or the
effect of such modification, a brief statement of the facts
requiring such adjustment or modification and the manner of
computing the same and cause copies of such certificate to be
mailed to the Holders of the Warrants.
(e) If the Board of Directors of the
Company shall declare any dividend or other distribution with
respect to the Common Stock other than a cash distribution out of
earned surplus, the Company shall mail notice thereof to the
Holders of the Warrants not less than 10 days prior to the
record date fixed for determining stockholders entitled to
participate in such dividend or other distribution.
(f) If, as a result of an adjustment
made pursuant to this Section 3, the Holder of any Warrant
thereafter surrendered for exercise shall become entitled to
receive shares of two or more classes of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be
described in a written notice to the Holder of any Warrant promptly
after such adjustment) shall determine the allocation of the
adjusted Per Share Warrant Price between or among shares or such
classes of capital stock or shares of Common Stock and other
capital stock.
(g) In case any event shall occur as
to which the other provisions of this Section 3 are not
strictly applicable but as to which the failure to make any
adjustment would not fairly protect the purchase rights represented
by this Warrant in accordance with the essential intent and
principles hereof then, in each such case, the Board of Directors
of the Company shall in good faith determine the adjustment, if
any, on a basis consistent with the essential intent and principles
established herein, necessary to preserve the purchase rights
represented by the Warrants. Upon such determination, the Company
will promptly mail a copy thereof to the Holder of this Warrant and
shall make the adjustments described therein.
4. Fully Paid Stock;
Taxes . The shares of the Common Stock represented by each
and every certificate for Warrant Shares delivered upon the
exercise of this War
