Exhibit 4.2
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.
Warrant for the Purchase of
Shares of Common Stock
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Warrant No.
PW-[ ]
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Number of Shares: [
]
(subject to adjustment)
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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 $1.375
per share (subject to adjustment as provided herein) and an
aggregate purchase price of [
] Dollars ($
). 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) 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 ,” (iv) the aggregate purchase price
payable for the Warrant Shares purchasable hereunder is referred to
as the “ Aggregate Warrant Price, ” (v) 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,
” and (vi) 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.
1. Exercise of Warrant
.
(a) This Warrant may be exercised in
whole at any time, or in part from time to time, commencing on the
Original Issue Date, and prior to 5:00 P.M., New York City time, on
July 15, 2013 by the Holder:
(i) by the 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; or
(ii) by the surrender of this
Warrant (with the cashless exercise form at the end hereof duly
executed) (a “ Cashless Exercise ”) at the
address set forth in Section 9(a) hereof. Such presentation
and surrender shall be deemed a waiver of the Holder’s
obligation to pay the Aggregate Warrant Price, or the proportionate
part thereof if this Warrant is exercised in part. In the event of
a Cashless Exercise, the Holder shall exchange its Warrant for that
number of Warrant Shares subject to such Cashless Exercise
multiplied by a fraction, the numerator of which shall be the
difference between the then Current Market Price and the Per Share
Warrant Price, and the denominator of which shall be the then
Current Market Price. For purposes of any computation under this
Section 1(a), the then Current Market Price shall be based on
the trading day prior to the Cashless Exercise.
(b) 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.
(c) The term “ Current
Market Price ” shall mean: the last reported sale price
of the Common Stock on the trading day immediately prior to such
date or, in case no such reported sales take place on such day, the
average of the last reported bid and asked prices of the Common
Stock on such day, in either case on the principal national
securities exchange on which the Common Stock is admitted to
trading or listed; or, if the Common Stock is not reported on a
national securities exchange, the last reported per share sale
price for the Common Stock in the over-the-counter market as
reported by the OTC Bulletin Board or another over-the-counter
market; or if not so available, the fair market value of the Common
Stock as determined in good faith by the Company’s Board of
Directors.
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.
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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.
(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
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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 surrender
