Exhibit 10.23
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 EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SUCH ACT.
Void after the Tenth
Anniversary hereof
WARRANT FOR THE
PURCHASE OF SHARES OF COMMON STOCK
of
THERAPEUTIC GENOMICS, INC.
(Incorporated under the
laws of the State of Delaware)
THIS CERTIFIES THAT, for value
received, Alexandria Real Estate Equities, L.P., a Delaware limited
partnership, together with its successors and assigns (each, a
“holder”), is entitled to purchase Fifteen Thousand
(15,000) duly authorized validly issued, fully paid and
nonassessable shares of Common Stock, no par value per share, (the
“Common Stock”) of Therapeutic Genomics, Inc., a
Delaware corporation (the “Company”), at the per share
purchase price described in Section 1.3 below, subject to the
provisions and upon the terms and conditions hereinafter set
forth.
1. 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:
1.1
Term . The purchase right represented by this Warrant may be
exercised in whole or in part at any time and from time to time
from and after the date hereof and on or before the tenth
anniversary hereof; provided , that if the last day on which
this Warrant may be exercised is not a Business Day (as defined in
Section 12 hereof), this Warrant may be exercised prior to
5:00 p.m. (New York time) on the next succeeding full Business Day
with the same force and effect as if exercised on such last day
specified herein.
1.2
Number of Shares . This Warrant is initially exercisable for
Fifteen Thousand (15,000) shares of Common Stock, subject to
adjustment pursuant to Section 2 of this Warrant.
1.3
Purchase Price . The initial per share purchase price for
the shares of Common Stock to be issued upon exercise of this
Warrant shall be $2.00, subject to adjustment pursuant to
Section 2 of this Warrant (the “Warrant
Price”).
1.4
Method of Exercise . The exercise of the purchase rights
evidenced by this Warrant shall be effected by (a) the
surrender of this Warrant, together with a duly executed copy of
the form of subscription attached hereto, to the Company at its
principal offices and (b) the delivery of the purchase price
(i) 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 hereunder are being
exercised or any other form of consideration approved by the
Company’s Board of Directors or (ii) pursuant to the
procedure set forth in Section 1.5.
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.
1.5
Cashless Exercise. In addition to and without limiting the
rights of the holder hereof under the terms hereof, at the
holder’s option this Warrant may be exercised in whole or in
part at any time or from time to time prior to its expiration for a
number of shares of Common Stock having an aggregate fair market
value on the date of such exercise equal to the difference between
(a) the fair market value of the number of shares of Warrant
Stock designated for exercise by the holder hereof on the date of
exercise and (b) the aggregate Warrant Price for such shares
in effect at such time.
The “fair market value”
of shares of Common Stock shall, for all purposes under this
Warrant, be calculated on the basis of (a) if the Common Stock
is then traded on a securities exchange, the average of the closing
prices of the Common Stock on such exchange over the twenty
(20) trading day period ending three (3) trading days
prior to the date of exercise, (b) if the Common Stock is then
regularly traded over-the-counter, the average of the sale prices
or, if sale prices for the Common Stock are not regularly and
publicly reported, the closing bid of the Common Stock over the
twenty (20) trading day period ending three (3) trading
days prior to the date of exercise, or (c) if there is no
active public market for the Common Stock, the fair market value
thereof shall be determined in good faith by the Company’s
Board of Directors; provided , that if the holder disputes
such a determination by the Company’s Board of Directors,
then such value may be determined by a nationally recognized
investment banking firm, mutually acceptable
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to the Company and the
holder, with the costs of such valuation being borne by the holder.
If the holder of this Warrant exercises this Warrant contingent
upon the closing of a public offering, the “fair market
value” of a share of Common Stock on the date of exercise
shall be equal to the initial price to the public specified in the
final prospectus with respect to such public offering. The
following illustrates how many shares would be issued upon exercise
of this Warrant pursuant to this Section 1.5:
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FMV |
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Fair market value per share of Common
Stock at date of exercise. |
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PSP |
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Per Share Warrant Price at date of
exercise. |
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N |
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Number of shares of Common Stock
desired to be exercised. |
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X |
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Number of shares of Common Stock
issued upon exercise. |
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X |
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( FMV)(N) - (PSP)(N) |
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FMV |
No payment of any cash or
other consideration to the Company shall be required from the
holder of this Warrant in connection with any exercise of this
Warrant pursuant to this Section 1.5. Such exercise shall be
effective upon the date of receipt by the Company of this Warrant
surrendered for cancellation and a written request from the holder
hereof that the exercise pursuant to this section be made, or at
such later date as may be specified in such request.
1.6
Issuance of Shares . As soon as reasonably practicable after
each exercise of this Warrant, in whole or in part, the Company at
its expense (including the payment by it of any applicable issue
taxes) shall cause to be issued in the name of and delivered to the
holder hereof or as such holder (upon payment by such holder of any
applicable transfer taxes) may direct, (a) a certificate or
certificates for the number of duly authorized, validly issued,
fully paid and nonassessable shares of Common Stock to which such
holder shall be entitled upon such exercise, and (b) in case
such exercise is in part only, a new Warrant or Warrants of like
tenor, representing in the aggregate the right to purchase the
number of shares of Common Stock equal (without giving effect to
any adjustment thereof provided for in Section 2) to the
number of such shares stated in this Warrant minus the number of
such shares designated by the holder upon such exercise as provided
herein.
2. Certain Adjustments
.
2.1
Mergers. Consolidations or Sale of Assets . If after the
date hereof there shall be a capital reorganization (other than a
combination or subdivision of Common Stock otherwise provided for
herein), or spin-off, or a merger or consolidation of the Company
with or into another corporation, a limited liability company, a
partnership or any other legal entity (each
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of the foregoing being
referred to herein as a “Person”), or the sale of all
or substantially all of the Company’s properties and assets
to any other Person, then, as a part of such transaction, lawful
provision shall be made so that the holder shall thereafter be
entitled to receive upon exercise of this Warrant, during the
period specified in this Warrant and upon payment of the purchase
price required by this Warrant, the number of shares of stock or
other securities, cash or property of the Company or the successor
corporation or other Person resulting from such transaction, to
which a holder of the Common Stock deliverable upon exercise of
this Warrant would have been entitled under the provisions of the
agreement in such transaction (or otherwise pursuant to such
transaction) if this Warrant had been exercised immediately before
such transaction. In any such case, appropriate adjustment (as
determined reasonably and in good faith by the Company’s
Board of Directors) shall be made in the application of the
provisions of this Warrant with respect to the rights and interests
of the holder after such transaction to the end that the provisions
of this Warrant (including adjustment of the Warrant Price then in
effect and the number of shares of Common Stock issuable upon
exercise hereof) shall be applicable after the transaction, as near
as reasonably may be, in relation to any shares or other property
deliverable after the transaction upon exercise of this
Warrant.
2.2
Splits and Subdivisions; Dividends . If the Company should
effect or fix a record date for the effectuation of a split or
subdivision of the outstanding shares of Common Stock or the
determination of the holders of Common Stock entitled to receive a
dividend or other distribution payable in additional shares of
Common Stock or other securities or warrants, options or other
rights convertible into, or entitling the holder thereof to receive
directly or indirectly, additional shares of Common Stock
(hereinafter referred to as “Common Stock Equivalents”)
without payment of any consideration by such holder for the
additional shares of Common Stock or Common Stock Equivalents
(including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or
the date of such distribution, split or subdivision if no record
date is fixed), the per share Warrant Price shall be appropriately
decreased, and the number of shares of Common Stock issuable upon
exercise hereof shall be appropriately increased, in proportion to
such increase of outstanding shares.
2.3
Combination of Shares . If the number of shares of Common
Stock outstanding at any time after the date hereof is decreased by
a combination of the outstanding shares of Common Stock, the per
share Warrant Price shall be appropriately increased, and the
number of shares of Common Stock issuable upon exercise hereof
shall be appropriately decreased, in proportion to such decrease in
outstanding shares.
2.4
Adjustments for Other Distributions . In the event the
Company shall declare a distribution payable in securities of the
Company (other than Common Stock or Common Stock Equivalents) or
other Persons, evidences of indebtedness issued by the Company or
other Persons, assets (including cash dividends) or options or
rights not referred to in subsection 2.2, then, in each such case,
upon exercise of this Warrant the holder hereof shall be entitled
to a proportionate share of any such distribution as though such
holder was the holder of the number of shares of
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Common Stock of the Company
into which this Warrant may be exercised as of the record date
fixed for the determination of the holders of Common Stock of the
Company entitled to receive such distribution.
2.5
Issuance of Additional Common Stock .
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(a) |
If, after the date hereof, the Company shall issue or sell |
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(i) Additional Shares (as defined below) without
consideration or for a consideration per share that is less than
the higher of (A) the Warrant Price and (B) the fair market
value of a share of Common Stock in effect immediately prior to
such issue or sale, or |
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(ii) Common Stock Equivalents exercisable for Additional
Shares with a minimum exercise or exchange price that is less than
the higher of (A) the Warrant Price and (B) the fair
market value of a share of Common Stock in effect immediately prior
to such issue or sale, |
then, and in each such
case, the Warrant Price theretofore in effect shall be reduced,
concurrently with such issue or sale, to a price (calculated to the
nearest. 001 of a cent) determined by multiplying such Warrant
Price by a fraction:
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(iii) the numerator of which shall be (A) the number
of shares of Common Stock outstanding immediately prior to such
issue or sale (including any shares of Common Stock issuable upon
conversion of outstanding shares of Preferred Stock and issuable
upon exercise of outstanding options, warrants or other convertible
securities) plus (B) the number of shares of Common Stock that
the aggregate consideration received by the Company upon such
issuance or sale (or, in the case of Common Stock Equivalents
exercisable for Additional Shares, receivable by the Company upon
exercise or exchange) would purchase at such Warrant Price,
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(iv) the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such issue or
sale (assuming, in the case of Common Stock Equivalents exercisable
for Additional Shares, exercise or exchange of all such Common
Stock Equivalents and including any shares of Common Stock issuable
upon conversion of outstanding shares of Preferred Stock and
issuable upon exercise of outstanding options, warrants or other
convertible securities). |
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(b) For
the purposes of this Section 2.5, the consideration for the
issue or sale of Additional Shares shall, irrespective of the
accounting treatment of such consideration, (i) insofar as it
consists of cash, be computed at the net amount of cash received by
the Company, and (ii) insofar as it consists of property
(including securities) other than cash, be computed at the fair
market value thereof at the time of such issue or sale as
determined in good faith by the Company’s Board of Directors.
In the event of a dispute by the holder as to the fair market value
of any consideration consisting of property, the Company shall, at
the option of the holder, engage a consulting firm or investment
banking firm mutually agreed to by the holder and the Company to
prepare an independent appraisal of the fair market value of such
property to be distributed. The expenses of such appraisal shall be
borne by the holder.
(c) Notwithstanding
anything contained herein to the contrary, the consideration for
any Common Stock Equivalents shall be deemed to be the total amount
of consideration received by the Company for the issuance of such
Common Stock Equivalents plus the minimum amount of consideration
payable to the Company upon exercise, conversion or exchange of
Common Stock Equivalents (the “Net Consideration”),
determined as of the date of issuance of such Common Stock
Equivalents. Any obligation, agreement or understanding to issue
Common Stock Equivalents at any time in the future shall be deemed
to be an issuance at the time such obligation or agreement is made
or arises. No adjustment of the Warrant Price shall be made under
this Section 2.5 upon the issuance of any shares of Common
Stock which are issued pursuant to the exercise, conversion or
exchange of any Common Stock Equivalents if any adjustment shall
previously have been made upon the issuance of any such Common
Stock Equivalents.
Should
the Net Consideration for any such Common Stock Equivalents be
increased or decreased from time to time, then, upon the
effectiveness of such change, the Warrant Price will be that which
would have been obtained (i) had the adjustments made upon the
issuance of such Common Stock Equivalents been made upon the basis
of the actual Net Consideration (as so increased or decreased) of
such Common Stock Equivalents, and (ii) had adjustments to
such Warrant Price since the date of issuance of such Common Stock
Equivalents been made to such Warrant Price as adjusted pursuant to
(i) above. Any adjustment of the Warrant Price pursuant to
this paragraph which relates to Common Stock Equivalents shall be
disregarded if, as, and when all of such Common Stock Equivalents
expire or are canceled without being exercised, so that the Warrant
Price effective immediately upon cancellation or expiration shall
be equal to the Warrant Price in effect at the time of the issuance
of the expired or canceled Common Stock Equivalents, with such
additional adjustments as would have been made to such Warrant
Price had the expired or canceled Common Stock Equivalents not been
issued.
(d) “Additional
Shares” means all shares of Common Stock, whether or not
subsequently reacquired or retired by the Company, other than
(i) shares of Common Stock issued or to be issued to
directors, officers, employees and consultants of the Company
pursuant to any bona fide qualified or non-qualified stock option
plan, stock purchase plan, stock restriction
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agreement, or employee
stock ownership plan (“ESOP”); (ii) all shares of
Common Stock issued or deemed to be issued and outstanding under
this Section 2.5 on the date of this Warrant; (iii) all
securities issued pursuant to any agreement to license technology
and/or provide sponsored research upon approval of the Board; and
(iv) all securities issued in connection with the lease of
equipment or in similar transactions upon the approval of the
Board.
(e) The
number of shares of Common Stock that the holder of this Warrant
shall be entitled to receive upon each exercise hereof after any
adjustment pursuant to this Section 2.5 shall be determined by
multiplying (i) the number of shares of Common Stock that were
issuable immediately prior to such adjustment, by (ii) the
fraction of which (A) the numerator is the Warrant Price
immediately prior to such adjustment and (B) the denominator
is the Warrant Price immediately following such adjustment.
2.6
Certificate as to Adjustments . In the case of each
adjustment or readjustment of the Warrant Price pursuant to this
Section 2, the Company at its expense shall promptly compute
such adjustment or readjustment in accordance with the terms hereof
and cause a certificate, signed by the Company’s Chief
Financial Officer, setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or
readjustment is based, to be delivered to the holder of this
Warrant. The certificate furnished to such holder shall set forth
(a) such adjustments and readjustments, (b) the Warrant
Price at the time in effect and how it was calculated and
(c) the number of shares of Common Stock issuable upon
exercise hereof and the amount, if any, of other property at the
time receivable upon the exercise of this Warrant.
2.7
No Impairment . The Company shall not, by amendment of its
articles of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Warrant,
but shall at all times in good faith assist in the carrying out of
all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the
holder of this Warrant against impairment. Without limiting the
generality of the foregoing, the Company (a) shall not permit
the par value of any shares of stock receivable upon the exercise
of this Warrant to exceed the amount payable therefor upon such
exercise, (b) shall take all such action as may be necessary
or appropriate in order that the Company may validly and legally
issue fully paid and nonassessable shares of stock on the exercise
of the Warrants from time to time outstanding; and (c) shall
not take any action which results in any adjustments of the Warrant
Price if the total number of shares of Common Stock issuable after
the action upon the exercise of all of the Warrants would exceed
the total number of shares of Common Stock then authorized by the
Company’s certificate of incorporation and available for the
purpose of issue upon such exercise.
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2.8
Notices of Record Date, etc . In the event of:
(a) any
taking by the Company of a record of the holders of any class of
securities of the Company for the purpose of determining the
holders thereof who are entitled to receive any dividend (other
than a cash dividend payable out of earned surplus at the same rate
as that of the last such cash dividend theretofore paid) or other
distribution, or any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or
property, or to receive any other right;
(b) any
capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any
transfer of all or substantially all of the assets of the Company
to any other person or any consolidation or merger involving the
Company; or
(c) any
voluntary or involuntary dissolution, liquidation or winding-up of
the Company, the Company shall mail to the holder of this Warrant
at least thirty (30) days prior to the earliest date specified
below, a notice specifying: (i) the date on which any such
record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such
dividend, distribution or right; and (ii) the date on which
any such reorganization, reclassification, transfer, consolidation,
merger, dissolution, liquidation or winding-up is expected to
become effective and the record date for determining stockholders
entitled to vote thereon and the time,
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